Central Administrative Tribunal - Delhi
Rajesh vs Govt. Of Nctd Through The on 12 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4236/2012 New Delhi this the 12th day of February, 2015 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) Rajesh Ex. PET S/o Late Shri Dilbagh Singh, R/o House No. 65-A, 2B, Nangloi Extension, Delhi. Applicant (By Advocate Shri Sachin Chauhan ) VERSUS 1. Govt. of NCTD through the Chief Secretary, Govt. of N.C.T.D, Delhi Sachivalaya, 4th Level C-Wing, I.P.Estage, New Delhi. 2. The Secretary (Education), Govt. of NCTD, Old Secretariat, Delhi-54. 3. The Director of Education, Vigilance Branch-HQ, Govt. of NCTD, Old Secretariat, Delhi-54. ... Respondents (By Advocate Ms. Rashmi Chopra ) ORDER Honble Mr. A.K.Bhardwaj, Member (J):
On being convicted for criminal charge under Section 498A/34 of IPC and awarded a sentence of rigorous imprisonment for a period of six months and fine of Rs.10,000/-, the applicant was dismissed from service. The order No.DE.7/112/Misc/ASV/09/155 9-65 dated 16.05.2012 passed by the disciplinary authority dismissing the applicant from service is placed on record as Annexure A-2 to the Original Application. The appeal preferred by the applicant against the order was dismissed in terms of order No. DE.7/112/Misc/ADV/09/3000 dated 16.10.2012 (Annexure A-3). The applicant filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, praying therein:-
In view of facts in para-4 above the applicant prays for the following relief:-
8.1. To set aside the SCN dated 28.2.12 at A-1 and order dated 16.5.12 at annexure A-2 and order dated 16.10.12 at A-3 and to further direct the respondent to reinstate the applicant in service forthwith with all consequential benefit including seniority and promotion and pay & allowances. or 8.2 Any other relief which this Honble court deems fit and proper may also be awarded to the applicant.
2. During the pendency of Original Application, the appeal preferred by applicant against the order of conviction was disposed of by Honble High Court along with the Criminal Appeal Nos. 386/2011 (Baljeet Singh and Anr Vs. State ), 486/2011 (Nirmala Vs. State of Delhi), 487/2011 (Rajesh and Anr Vs. State of Delhi) and 1080/2011 (Pushpa Devi Vs. Rajesh Kumar etc). When the appeals of the accused Nirmala, Baljit and Sanjeet are dismissed, the appeal of the applicant has been allowed. Para 174 and 175 of the Judgment of Honble Delhi High Court read thus:
174. In light of the aforesaid discussion, we deem it appropriate to uphold the sentence so far as Accused Nirmala, Baljeet and Sanjeet are concerned. Accordingly, appeals filed by the accused-Nirmala (Crl.A No.486/2011), Baljit and Sanjeet (Crl.A. No.3386/2011) are dismissed and the order on sentence passed by the learned trial court convicting them for the offence punishable under Section 302/120-B/34 of IPC is confirmed. However, so far as the appeal filed by Rajesh and Meena is concerned, (Crl.A No.487/2011) the same is hereby allowed and the judgment and order on sentence passed by the learned trial court convicting them under section 498-A of IPC is set aside and the appellant-Meena and Rajesh are acquitted. With regard to the appeal filed by appellant-
Pushpa Devi (Crl.A No.1080/2011) the same does not sustain in view of the above discussion and the same is hereby dismissed.
175. At the end we are pained to observe, the more things change, the more they remain the same, and this has never ringed true than in todays time and age. We, the worlds largest democracy are touted to be the most progressive nation, proud of our rich cultural heritage, but are we also proud of our deep rooted biases? The present case is a manifestation of the bitter ostensible truth of our society where words like women liberation and gender equality seem to be overrated but have yet to attain their true meaning. There is a huge chasm that needs to be bridged between fact and fiction, to make the women masters of their own circumstance and not vice versa and to falsify the age old adage of Putrathe Kriyathe Varja that we marry with the sole aim to have a son to keep the clan progressing.
3. In view of the aforementioned judgment dated 26.09.2014, the learned counsel for applicant submitted that since the very foundation of the dismissal of the applicant from service has gone, the impugned orders need to be set asided and the applicant has to be declared entitled to arrears of pay on reinstatement in service. To buttress his argument, counsel for applicant relied upon the judgment of Honble Madras High Court in Union of India Vs R. Akbar Sheriff (AIR 1961 Mad 486). Para 12 of the judgment read thus:-
12. Every civil servant employed under the Union of India holds office during the pleasure of the President except as expressly provided by the Constitution. Both under the Government of India Acts of 1919 and 1935 every person in the civil service of the Crown in India holds office during His Majesty's pleasure. This pattern of tenure of office by a person serving the Union is adopted from the English system of civil service. The underlying conception of the rule is based upon public policy. The conditions of services are regulated by statutory rides. Section 240, Clause. (2) and (3) of the Government of India Act, 1935 introduced two safeguards in favour of the civil servant, that he shall not be dismissed from the service by any authority subordinate to in rank to that by which he was appointed and that he shall not be dismissed from service or reduced in rank Until he has been given a reasonable opportunity of showing cause against the proposed action against him.
Article 311 Clauses (1) and (2) of the Constitution now provide the same safeguards not merely for dismissal from the service and reduction in Tank, but also for removal from service of a civil servant. These provisions operate as restrictions on the otherwise unfettered powers of the President or the Governor. A violation of Article 311(1) or 311(2) is a justiciable issue in a court of law as the terms thereof are mandatory and not permissive, qualifying, the Provisions of Article 310 and providing a condition precedent to the exercise of the power under Article 310.
The observation of Lord Thankerton delivering the judgment of the Judicial Commitee in High Commissioner for India v. I. M. Lall, 75 Ind App 225 : (AIR 1948 PC 121) interpreting the provisions of Sections 240(2) and 240(3) of the "Government of India Act is fully applicable and affords guidance to the interpretation of Article 311(1) and 311(2) of the Constitution. Any purported removal or dismissal from service of a civil servant without conformity to the prohibitory and mandatory provisions of Articles 311(1) and 311(2) of the Constitution is void and inoperative. The proviso to Article 311(2) is as follows:
"Provided that this clause shall not apply; (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge...."
The immunity of a civil servant under the Union of India from dismissal or removal from service or reduction in rank until he has been given a reasonable chance of showing cause against the action proposed to be taken against him is taken away under proviso (a) to Article 311(2) in a case where the dismissal or removal from service or reduction in rank is based upon the ground of conduct which resulted in his conviction on a criminal charge. In order to sustain an order of dismissal from service of a civil servant without compliance of the provisions of Article 311(2), there must be a conviction of that person on a criminal charge by a competent court.
Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person of a criminal charge by a higher court setting aside the conviction passed by a subordinate or an inferior court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside. This view of the matter is not a legal fiction as the proceedings forming the subject matter of a criminal charge against a person from the primary court of trial to the ultimate court of final appeal or revision really constitute one proceeding and however varying the fortunes of the person indicated may be the proceeding can always have only one result, and that is the result of the last proceeding which becomes indefeasibly final. He further relied upon the decision of this Tribunal in OA No. 2143/2012 (K.C. Singh Vs. Govt. of NCT of Delhi and Ors).
4. On the other hand, learned counsel for the respondents submitted:-
(i) It is not that the applicant has been dismissed from
service on the basis of his conviction, but the
dismissal is based on his conduct which led to
conviction;
(ii) In the judgment of Madras High Court (Union of
India Vs. R. Akbar Sheriff (AIR 1961 Mad 486),
the issue involved pertain to the financial benefits for the intervening period and there is no ratio decendi that once a conviction order is set asided, the employee need to be reinstated in service automatically;
(iii) To comment upon the order of this Tribunal in K.C.Singh Vs. Govt. of NCT of Delhi and Ors ( OA
2143/2012), she submitted that in the said case the applicant had made a representation to respondents on the basis of his acquittal and the respondents had not reacted to the same, thus in the facts of the case, this Tribunal allowed the OA and directed the respondents to reinstate the applicant in service, when in the present case, the applicant has not preferred any representation to the concerned authority on the basis of the order of Honble High Court.
(iv) The order passed by Honble High Court in the appeal preferred by the applicant is the development subsequent to the filing of present OA and the relief sought in the OA is not based on the said judgment. The validity of the impugned order i.e. the order of dismissal and rejection of his appeal have to be adjudged as on the point of time when the same was passed i.e. the order of conviction was in operation. The subsequent order of Honble High Court may be a ground for re visiting the order passed by the disciplinary authority and appellate authority, but cannot be a ground to arrive at a conclusion that the order as passed by the authorities suffers from any wary.
5. We heard learned counsel for parties and perused the record. It is not in dispute that the respondents had dismissed the service of the applicant under Rule 9 (1) of CCS (CCA) Rules, 1965, i.e. in view of his conduct which led to his conviction and no independent inquiry was held. Admittedly, the order of conviction has been set asided. As has been viewed by Honble Supreme Court in Union of India Vs. V.K.Bhaskar (1997 (11) SSC 383) relied upon by Ms. Rashmi Chopra, counsel for respondents, once the Government servant-accused is acquitted on appeal or other proceedings, the order of dismissal can always be revisited and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. Para 4 of the judgment read thus:-
4. Rule 19(1 of the Rules is based on clause (a) of the proviso to sub- article (2 of Article 311 of the Constitution. Construing the said proviso to Article 311(2, this court, in Deputy Director of Collegiate Education (Admn.) v. S. Nagoor Meera, has held:
"This clause, it is relevant to notice, speaks of 'conduct which has led his conviction on a criminal charge'. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal 'the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond'. Section 389(1), it may be noted, speaks of suspending 'the execution of the sentence or order', it does not expressly speak of suspension of conviction.
* We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal of reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.
The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2 is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2 once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2 will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2).
* * * What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated, above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice."
The argument put forth by the learned counsel for applicant that it is the conduct of the delinquent which led to his conviction and not the conviction itself is supported by the view taken by Honble Supreme Court in the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank (JT 2010 (8) SC 233), the relevant excerpt of which read as under:-
27. In view of the above, we reach the conclusion that once a Criminal Court grant a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word disqualification in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purpose of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provision of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the period of probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 get terminated and the delinquent can be made liable to undergo the sentence. Therefore, in case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal.
6. We find sufficient force in the submissions put forth by learned counsel for respondents that since at the points of time when the order of dismissal/rejection of appeal was passed, the conviction order was in operation, the impugned orders as it is cannot be found to be suffering from any infirmity or wary. Nevertheless, once the conviction has been set asided by Honble High Court, the orders needs to be revisited. As far as the order passed by Honble Madras High Court is concerned, the learned counsel for respondents is correct in submitting that it was not so that the respondent was reinstated in service at the strength of any judicial order. In the said case, the petitioner had reinstated him in service on their own and the issue raised before Honble High Court pertains to the decision on the intervening period. For easy reference para 8 to 11 of the judgment are reproduced hereinbelow:-
8. On 24-4-1951 the plaintiff wrote Ex. A-11 to the General Manager stating that all the prosecutions against him had ended in order of acquittal, that the order of dismissal passed by the railway can no longer stand, and that he should be restored to his job as Permanent Way Inspector, maintaining his seniority, and that the whole period from the date of suspension from duly to reinstatement should be treated as special leave on duty arid that he should also he given the benefit of the annual increments on the due dates- As there was no response from the railway, the plaintiff addressed to the General Manager further letters, Exs- A-12 dated 27-4-1951 and A-13 dated 14-5-1951.
He followed this up by a registered notice through his counsel at Madurai to the General Manager which is Ex. A-15 dated 2-6-1951. The demand contained in the notice on behalf of the plaintiff was couched in the following terms:
"This is to give you notice that my client will be forced to the painful necessity of filing a suit for reinstatement and for damages and back pay if he is not reinstated within a week from receipt of this notice."
9. The railway sent a reply, Ex. A-14 dated 9-6-1951 stating that the matter was under consideration. On 10-7-1951 the plaintiff received the communication Ex. A-I6 in the following terms:
"This office No. A.34/44/IE of 15/22-3-1949 dismissing you from service with effect from 313-1949 is hereby cancelled and the Chief Engineer has been advised to reinstate you in service immediately. Please note that you will not draw anything more than what has already been paid to you for the period from 4-2-1949 to the date of reinstatement."
10. The plaintiff submitted the petition dated 23-7-1957 to the General Manager for reconsideration of the decision withholding salary for the period between the date of dismissal and the date of reinstatement. To this the railway sent a reply Ex. B. 3 dated 20-9-1951 stating that the period of absence from 31-3-1949 to 12-7-1951 will be treated as leave without pay. The plaintiff again wrote to the General Manager by his letter Ex. A. 22 dated 9-11-1951 pleading for payment of salary and allowance for the period in which he was out of office by reason of the order of dismissal which was subsequently set aside and cancelled. The plaintiff gave instance in that letter where the railway was pleased to grant full pay and allowance to other employees who were dismissed but subsequently reinstated.
The railway sent a reply stating that there was no justification for modifying the orders already issued by them. Then the plaintiff wrote another letter, Ex. A. 10, dated 4-3-1952, addressed to the General Manager complaining that persons junior to him in service had been promoted to higher grade and that the railway should give him also the benefit of promotion. The railway sent a reply, Ex. A. 24, dated 7-4-1952 observing that it was not possible to set aside the results of the selection board during the period he was absent from duty from 31-3-1949 to 12-7-1951, but that the plaintiff will maintain his seniority in his grade amongst those not selected for higher posts. After some further correspondence the plaintiff caused a notice to be issued through his counsel intimating the railway of the intended suit to which the railway sent a reply, Ex. A. 25, stating that the plaintiff was at liberty to move the court at his own risk. The plaintiff was therefore compelled to launch the present suit.
11. From the facts set out above which are not in dispute it is clear that the plaintiff was dismissed from service by reason only of the conviction and sentence passed against him by the Asst. Sessions Judge, Mangalore, on 31-1-194SK The dismissal order Ex. A. 4 in the case specifically states that the plaintiff was dismissed on account of "criminal conviction." It is also clear that the plaintiff was reinstated in service only as a result of the conviction against the plaintiff having been set aside by this court by order dated 25-1-1951. The contention of the plaintiff is that the order of dismissal from service was illegal as it merely followed a wrong order of conviction-which was ultimately set aside by the highest court in the State.
If the plaintiff was not reinstated in service he could have filed a suit in the civil court for a declaration that the order of dismissal was illegal, void and inoperative as the foundation for the order of dismissal, namely, the conviction by a competent criminal court, was absent, the conviction itself, having been set aside, and as there was no compliance with the provisions of Article 311 of the Constitution. We shall refer to the terms of Article 311 and discuss the rights of the civil servant holding office under the Union of India, a little later. The plaintiff's case, therefore, is that he cannot be deprived of the salary and allowance by reason of an illegal and void order of dismissal passed by the railway.
On behalf of the Union of India this contention is met on the ground that the order of dismissal at the time when it was passed was quite legal and proper as it merely gave effect to the conviction of the plaintiff by a competent criminal court, and that the subsequent setting aside of the conviction by a court of superior jurisdiction cannot retrospectively affect the legality of the dismissal order so as to enable the plaintiff to claim the salary and allowance for the period for which he was out of office.
Likewise in K.C.Singh Vs. GNCT and others (ibid) on his acquittal, the applicant had made a representation to respondents to revisit the penalty order and when the representation did not receive any response from the department, this Tribunal allowed the OA. In the present case after his acquittal, the applicant has yet to make a representation to the respondents. Relevant excerpt of para 5 of the order passed by this Tribunal read thus:-
5. The contentions of the learned counsel for the applicant is that once the High Court has acquitted him on 10.8.2011, unless an appeal is filed against the same, the respondents ought to have reinstated him in service. He has also stated that the respondents have not responded to his various representations seeking reinstatement in service and apprising them about the outcome of the criminal appeal filed before the Honble High Court as aforestated. The other contention of the applicant is that since he was dismissed from service under Rule 19 (1) of the Rules 1965 only on the sole ground that he was convicted in the criminal case, he should have been reinstated in service one the said judgment of conviction has been set aside by the High Court acquitted him of the charges.
7. In view of the aforementioned, we dispose of the present OA with direction to appellate authority to revisit its order in the wake of the order passed by Honble High Court of Delhi in criminal appeal No. 487/2011 (ibid), as expeditiously as possible preferably within four weeks from the date of receipt of a copy of this order. While doing so, the appellate authority would keep in view the aforementioned judicial pronouncements. No costs.
(V.N.Gaur) ( A.K.Bhardwaj) Member (A) Member (J) sk