Central Administrative Tribunal - Bangalore
Kv Srinivasa Prasad vs Revenue on 8 January, 2024
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OA.No.463/2021/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0463/2021
ORDER RESERVED ON:22.11.2023
DATE OF ORDER: 08.01.2024
CORAM:
HON'BLE MS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE SHRI RAKESH KUMAR GUPTA, MEMBER (A)
K.V. Srinivasa Prasad,
S/o V. Venkatapathy,
Aged 49 years,
Working as Superintendent of Central Tax
(Now removed from service),
O/o Principal Commissioner of Central Tax,
Vinaya Marga, Siddartha Nagara,
Mysuru-570 011.
Residing at No.126, 24th Cross,
11th Main, 1st Stage, 'D' Block,
J.P. Nagar, Mysuru-570 031. ....Applicant
(By Advocate Shri A.R. Holla)
Vs.
1.Union of India
By Secretary,
Ministry of Finance,
Department of Revenue,
North Block,
New Delhi-110 001.
2. The Principal Chief Commissioner of Central Tax,
Bengaluru Zone,
C.R. Building, Queen's Road,
Bengaluru-560 001.
3. The Principal Commissioner of Central Tax,
Mysuru Commissionerate,
Vinaya Marga, Siddartha Nagar,
Mysuru-570 011. ....Respondents
(By Shri S. Prakash Shetty, Sr. Panel Counsel for Respondents)
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OA.No.463/2021/CAT/Bangalore Bench
ORDER
PER: RAKESH KUMAR GUPTA, MEMBER (A)
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
a) To quash the Order in File No. II/10.A/16/2020-VIG- O/o Pr Commr-
CGST-Mysuru, dated 03.3.2021, issued by Respondent No.3 (Annexure A5),vide which the applicant has been imposed with the penalty of "removal from service" under Rule 11 (viii) of CCS (CCA) Riles 1965, w.e.f. 03.03.2021.
b) To quash the Order in Appeal No.06/2021/(Vig) dated 24.8.2021/586, issued by respondent No.2 (Annexure A8), vide which his appeal filed against the penalty order, has been rejected and the order imposing penalty of removal from service w.e.f. 03.3.3021 has been upheld.
c) To direct the respondents to reinstate the applicant in service and extend consequential benefits to the applicant accordingly treating his absence during the intervening period as on duty.
d) Grant such other relief as deemed fit, having regard to the facts and circumstances of the case.
2. The facts of the case as averred by the applicant in his pleadings, are as follows:
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a) The applicant was working as Superintendent of Customs, office of the Commissioner of Customs (Air Cargo and Airport), Kempegowda International Airport, Devanahalli, Bengaluru, during 2015. On the intervening night of 12/13.10.2015 one Sri. Srikumar travelled from Singapore to Bengaluru and brought 15 laptops without the authority of law. He was caught by the applicant and to release the said laptops, the applicant is alleged to have demanded Rs.1 lakh. The said Sri. Srikumar is said to have bargained and the amount was settled at Rs.50,000/-. Sri. Srikumar sought short time to pay the bribe amount.
The applicant is alleged to have retained the boarding pass, E-visa and other documents, original bill, passport, etc. belonging to the said Sri. Srikumar. He was allowed to take away the laptops brought by him.
b) Thereafter, Sri. Srikumar lodged a complaint in the office of the CBI before the Superintendent of Police and a case was registered against the applicant (A1) and Sri. A. Lourduprabhu, a Hawaldar (Group C employee), o/o Principal Commissioner of Customs (A2) and other unknown officials of Custom Department for the offences punishable under Section 7 & 13(2) read with 13(1) (d) of the Prevention of Corruption Act.
c) Subsequently, a trap was laid in the Empire Hotel, Kammanahalli Main Road, Bengaluru. The conversation between the Al and A2 were recorded during the trap. Thereafter, criminal proceedings were held in Spl. C.C. No.13 of 2016 in the Court of the XXXII Adll. City Civil and Sessions judge and Special Judge for CBI cases.
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d) Vide Judgement dated 09.12.2020, the applicant was convicted and awarded a sentence of simple imprisonment for a period of 3 years in addition to a direction to pay fine of Rs. 10,000/- and in default to undergo simple imprisonment for a period of 2 months for the offence punishable under section 7 of the Prevention of Corruption Act. In addition, simple imprisonment for a period of 4 years and a fine of Rs.20,000/- and in default to undergo simple imprisonment for a period of 3 months for the offence punishable under section 13(2) of the Prevention of Corruption Act were imposed on the applicant. Both these sentences of imprisonment were ordered to run concurrently.
e) The applicant preferred an appeal, challenging the above Judgment and conviction, before the High Court of Karnataka in Criminal Appeal No.1288 of 2020. The High Court admitted the appeal and by an order dated 15.12.2020 in I.A. No.1/2020 suspended the judgment and conviction and sentence on the terms and conditions stated therein.
f) Thereafter, the respondent no.3 issued a show cause notice dated 08.01.2021 to the applicant under Rule 19(i) of the CCS (CCA) Rules, 1965, to submit his representation as to why the penalty of removal from service should not be imposed on him in view of the gravity of the charges proved against him in the criminal proceedings. The applicant submitted his detailed representation dated 15.02.2021 with a request not to impose the proposed penalty on him. Thereafter, the respondent No.3 passed an order dated 03.03.2021 stating that the conduct of the applicant which has led to his conviction is such as to 5 OA.No.463/2021/CAT/Bangalore Bench render his retention in the public service undesirable. After discussing the findings given in the criminal proceedings elaborately, exercising his powers conferred by Rule 19(i) of the CCS (CCA) Rules, 1965, he imposed the penalty of "removal from service" on the applicant.
g) The applicant challenged the order of his removal from service before this Tribunal in OA/170/313/2021 seeking consequential relief. This Tribunal, by an order dated 17.06.2021, noting that the applicant has not filed an appeal against the said order, dismissed the OA/170/313/2021, on the ground that the OA is not maintainable. In accordance with the orders of this Tribunal, the applicant preferred an appeal to the respondent No.2 on 24.07.2021 against the order of his removal from service. The respondent No: 2, by an order dated 24.08.2021 rejected the appeal of the applicant.
h) Respondent No.3 has imposed the penalty of removal of the applicant from service on the ground that the conduct of the applicant which has led to his conviction is such as to render his further retention in the public service undesirable. The conclusion of the respondent No.3 is erroneous in as much as the conviction of the applicant has been suspended by the High Court in terms of the order dated 15.12.2020 in I.A. No.1 of 2020 in Crl. A. No. 1288 of 2020. Therefore, there is no justification for imposition of any penalty on the applicant, because the conviction is no more in existence
i) The respondent No.3, in the impugned order, has dealt on the facts of the case and the findings of the Sessions Court with regard to the 6 OA.No.463/2021/CAT/Bangalore Bench offences committed by the applicant. When the High Court, in its wisdom has suspended the sentence, Judgment and conviction of the applicant, the disciplinary authority cannot enforce the conviction on the applicant indirectly.
j) The respondent Nos.3 and 2 ought to have waited for the outcome of the proceedings in Crl. A. No.188 of 2020 pending before the High Court before imposing the penalty on the applicant. Without seeking modification of the order dated 15.12.2020 passed by the High Court in I.A. No. l of 2020, the respondents Nos. 3 and 2 cannot precipitate the matter in terms of the impugned order.
k) The conclusions of the disciplinary authority have been influenced by the findings recorded in the criminal proceedings. The disciplinary authority as well as the appellate authority have not assessed the evidence on record and arrived at their conclusions independently.
l) The disciplinary authority has relied on the statements made by the witnesses in the criminal proceedings. The disciplinary authority has relied upon extraneous materials to arrive at his conclusions and hold that the charges have been proved against the applicant.
m) The appellate authority has failed to consider the appeal of the applicant in accordance with the Rule 27 of the CCS (CCA) Rules, 1965. In particular, the appellate authority has failed to consider as to whether the inquiry was held in accordance with the rules, whether the 7 OA.No.463/2021/CAT/Bangalore Bench findings are based on evidence, and whether the penalty imposed is excessive etc.
n) Both the disciplinary authority and the appellate authority have considered extraneous materials for their conclusions and their approach in imposing the penalty on the applicant is biased highly leaning towards the findings recorded in the criminal proceedings.
3. The respondents have filed their written statement wherein they have averred as follows:
a) The applicant has challenged the order dated 3.3.2021 issued by the 3rd respondent and order dated 24.8.2021 issued by the 2nd respondent.
Applicant has also sought reinstatement into service with consequential benefits etc.
b) Shri. K. V. Srinivasa Prasad, (A.1-Accused No. 1) who was working as Superintendent of. Central Tax, Review Section, Mysuru Central Tax Commissionerate, is convicted on a criminal charge under Section 235(2) of Cr.P.C., 1973, for the offence punishable under Section 7 and Section 13(2) of the Prevention of Corruption Act, 1988 vide order of conviction dated 09.12.2020 passed in the judgment by the Spl. Judge for CBI cases, Bangalore (CCH.34) in the Spl. C.C.No.13/2016.
c) He was inter-alia sentenced to undergo simple imprisonment for a period of 3(three) years and to pay a fine of Rs.10,000/- and in default to undergo S.I for a period of 2 months for the offence punishable u/s.7 of the Prevention of Corruption Act. Further, he was sentenced to 8 OA.No.463/2021/CAT/Bangalore Bench undergo S.I for a period of 4(four) years and pay a fine of Rs.20,000/- and in default shall undergo SI for a period of 3 months for the offence punishable u/s.13(2) of the Prevention of Corruption Act. Further ordered that sentence of imprisonment run concurrently. And also ordered for issue of conviction warrant.
d) The applicant, while in judicial custody after conviction as above, filed a Criminal Appeal bearing no.1288/2020 vide I.A.No.1/2020 for suspension of sentence and bail, as may be seen from the order dated 15.12.2020 of the Hon'ble High Court of Karnataka, Bengaluru. The respondent in the case was Central Bureau of Investigation, Anti- Corruption Brach, Ganga Nagar, Bengaluru.
e) On page 2 of the said order of the Hon'ble High Court, it is inter-alia stated that I.A. No. 1/2020 filed by the advocate for the appellant praying to suspend the sentence imposed in the impugned judgment and order dated 09.12.2020 passed by the XXXII Additional City Civil and Sessions Judge, and Spl. Judge for CBI cases, Bengaluru in SPL.C.C.No.13/2016, convicting the Appellant/Accused No.1 for the offence P/U/S 7 and 13(2) of P.C. Act, and enlarge the appellant on bail pending disposal of the appeal for the reasons stated therein. The criminal appeal bearing No. I.A. No.1/2020 came for admission for Suspension of Sentence and Bail on 15.12.2020.
f) In the said order, Hon'ble High Court heard the learned counsel for the appellant and SPP for respondent-CBI and inter-alia recorded the submission made by the learned counsel for the appellant for 9 OA.No.463/2021/CAT/Bangalore Bench consideration of I.A. No. 1/2020 to suspend the Judgment and conviction and sentence. It was recorded that the appeal is filed against the judgement and the order or sentence rendered by the trial court on various grounds. Hon'ble High Court ordered that IA is allowed subject to conditions.
g) It is observed that the case was heard for admission and for suspension of sentence and bail only. It is evident from the order that Hon'ble High Court after taking on record, the submission of the applicant, allowed the IA NO. 1/2020 without expressing any view on merits in the matter and subject to conditions. The conditions specified are execution of bond with surety to the satisfaction of IO and deposit of fine amount as held by the trial court. It further ordered for listing of matter thereafter in the usual course.
h) If IA No.1/2020 had been allowed with setting aside of judgment of trial Court viz. conviction and sentence, as contested by the appellant- accused, Shri. K. V. Srinivasa Prasad, then there was no requirement for conditions of bond and penalty, etc., in the Hon'ble High Court order and also of listing of matter thereafter. Further, High Court would have rendered the IA filed by the appellant-accused as disposed, whereas Hon'ble High Court allowed the IA for admission and granted interim relief of suspension of sentence and bail and ordered for listing in usual course.
i) The disciplinary authority considered the circumstances of the case which led to conviction on a criminal charge and imposed penalty on 10 OA.No.463/2021/CAT/Bangalore Bench the appellant on the grounds of his misconduct. Hence, imposition of penalty on the appellant vide the order No.1/2021/VIG issued under Rule 19(i) of the CCS(CCA) Rules, 1965, is justified and in order.
j) The action has been taken against appellant under Rule 19(i) of the CCS(CCA) Rules, 1965 on the ground of misconduct on the basis of trial court judgment wherein appellant stands convicted. The conviction has not been set aside by the Hon'ble High Court. Mere admission of Criminal Appeal and suspension of sentence and grant of bail by the first appellate court will not render the appellant exonerated of conviction. The conviction of the appellant-accused continues.
k) The order of the disciplinary authority relied on observations made in two judgements made by Hon'ble Supreme Court viz.(1) Union of India and others v/s Shri. Ramesh Kumar dated 2nd September 1997, and (2) in the judgement dated 02nd August 2001 in the case of K.C. Sareen Vs. C.B.I., Chandigarh in Appeal (crl.) No.770 of 2001.
l) Hon'ble Supreme Court in the case of K.C. Sareen vs. CBI., Chandigarh in Appeal (crl.) No.770/2001, has observed as follows:
"When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once 11 OA.No.463/2021/CAT/Bangalore Bench again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions, besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fall out would be one of shaking the system itself. Hence, it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold any public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level ."
m) Hon'ble Supreme Court in the case of Union of India and others v/s Shri. Ramesh Kumar dated 2nd September 1997 has observed as under:
"A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be 12 OA.No.463/2021/CAT/Bangalore Bench treated under suspension till disposal of the appeal by the Appellate Court filed by Govt. servant for talking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a component Court of law has not lost its string merely because a criminal appeal was filled by the respondent against his conviction and the Appellant Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellant Court has power to suspend the sentence and to release an accused on bail. When the appellant Court suspends the execution of sentences, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under section 389 Cr.P.C. an accused avoids undergoing sentences pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellant Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court."
n) The appellant's contention that the respondent should have waited for the outcome of the proceedings in the Criminal Appeal No. 1288 of 2020 pending before the Hon'ble High Court to impose penalty on the 13 OA.No.463/2021/CAT/Bangalore Bench appellant, in itself corroborates that the High court has not suspended the judgement of the trial court, but suspended the sentence and granted bail.
o) In the High Court order dated. 15.12.2020, the Criminal Appeal No. 1288/2020 was heard for admission and suspension of sentence and to enlarge the appellant on bail, pending disposal of the appeal for the reasons stated therein. In the process, Hon'ble High Court had taken on record the submission of learned counsel for the appellant for consideration of 1A No.1/2020 to suspend the judgment and conviction and sentence.
p) The order No.1/2021/VIG dated 03.3.2021 is issued by the disciplinary authority and upheld by the appellate authority, after due consideration of the facts of the case.
q) In the criminal trial, the charge is required to be proved beyond reasonable doubt and in departmental inquiry the standard of evidence is preponderance of probability. Hence, the appellant's demand to continue the disciplinary proceedings under Rule 14 of CCS(CCA) Rules, 1965 and not to invoke rule 19(i) is not acceptable. Since, appellant is convicted by the trial court, the departmental inquiry proceedings stands, till the conviction is set aside by the appellate higher court.
r) The appellate authority, while passing the order in appeal No.06/2021(Vig) dated 24.08.2021, has considered the findings of 14 OA.No.463/2021/CAT/Bangalore Bench Order in Original at length and also the submissions of the applicant. The appellate authority in the paras 13 to 17 of the order in appeal had discussed the findings of order in Original in detail and in para 18, the submissions of appellant at length. Hence, the allegation that Rule 27 of the CCS (CCA) Rules, 1965 has not been followed, is incorrect and false.
s) The appellant has not been exonerated by any superior court so far and he has also not submitted anything new or any clinching evidence in his favour during these appeal proceedings. Hence, the appellate authority rightly upheld the Order bearing No.01/2021 dated 03.03.2021 issued by the disciplinary authority and rejected the appeal filed by the appellant against removal from service under Rules 24 and 27 of the CCS(CCA) Rules, 1965.
4. Heard learned counsels for the parties and perused the pleadings made by them.
5. In the present case, the applicant has challenged the order dated 03.03.2021 vide which a penalty of removal from service under Rule 11 (viii) of CCS (CCA) Rules, 1965 has been imposed upon the applicant w.e.f. 03.03.2021. The imposition of this penalty has been confirmed by the Appellate Authority on 24.08.2021 while disposing of the appeal dated 24.07.2021.
6. The facts of the case, as per the pleadings of the parties, reveal that the applicant had been arrested by the CBI on 17.12.2015 while demanding a bribe of Rs. 1 lakh for which a trap had been laid against him. Subsequently, 15 OA.No.463/2021/CAT/Bangalore Bench the applicant stands convicted vide judgment of the CBI Court passed vide Spl. C.C. No. 13/2016 dated 09.12.2020.
7. The appellant filed IA No. 1/2020 before the Hon'ble High Court of Karnataka seeking suspension of sentence imposed in the judgment and the order of the CBI Court dated 09.12.2020. The Hon'ble High Court of Karnataka vide its order dated 15.12.2020 in IA No. 1/2020 in Criminal Appeal No. 1288/2020, allowed the IA No. 1/2020 without expressing any merits in the matter, but subject to certain conditions.
8. Subsequently, the Disciplinary Authority vide its order dated 03.03.2021 has held that this act of mis-conduct on the part of the applicant rendered him liable for penal action under Rule 19 (i) of Central Civil Service (Classification, Control and Appeal) Rules, 1965. Consequently, a penalty of removal from service was imposed on the applicant. The said penalty order has been confirmed by the Appellate Authority as well.
9. The applicant, in the present OA has relied on the orders passed by the Honourable High Court of Karnataka and stated that the conviction of the applicant has been suspended by the Hon'ble High Court in terms of its order dated 15.12.2020 in IA No. 1/2020. He has, therefore, stated that once the conviction is no more in existence, there is no justification for imposition of any penalty. Respondents ought to have waited for the outcome of the proceedings pending before the Hon'ble High Court before imposing any penalty on the applicant. He has argued that without seeking modification of the order dated 15.12.2020 passed by the High Court in I.A. No. 1/ 2020, the respondents cannot precipitate the matter in terms of the impugned order. 16
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10. The applicant has further stated that the conclusions of the Disciplinary Authority have been influenced by the findings recorded in the criminal proceedings. The Disciplinary Authority and the Appellate Authority have not assessed the evidence on record and arrived at their conclusions independently. Both the Disciplinary Authority and the Appellate Authority have considered extraneous materials for their conclusions and their approach in imposing the penalty on the applicant is biased highly leaning towards the findings recorded in the criminal proceedings.
11. A careful perusal of the orders of the Hon'ble High Court in I.A. No. 1/2020 issued by the Hon'ble High Court on 15.12.2020, reveals the following as per the operative portions of the order: -
"Against the judgment of conviction and the order or sentence rendered by the trial Court, this appeal has been filed urging various grounds. I deem it proper to allow IA No.1/2020 without expressing any merits in this matter.
Hence, IA No.1/2020 is hereby allowed subject to the following conditions:
a) The appellant-accused No.1 shall execute bond for a sum of Rs.
1,00,000/-with like sum surety to the satisfaction of IO in S.C.No.13/2016 within a period of 20 days from the date of receipt of this order.
b) The appellant - accused shall deposit the fine amount as held by the trial Court which is stated in the operative portion of the order of the trial Court. If not, already deposited. The amount shall be deposited before the trial Court in Special CC.No.13/2016 within a period of 20 days from the date of receipt of copy of this order. 17
OA.No.463/2021/CAT/Bangalore Bench The registry is directed to secure the records after compliance of conditions by the accused.
List this matter thereafter in the usual course."
12. A careful reading of the orders in the IA issued by the Hon'ble High Court nowhere state that the order of conviction has been quashed, dismissed or diluted by the Hon'ble High Court. The suspension of the said order of the CBI Court and grant of bail to the appellant is subject to various conditions such as execution of bond and surety and payment of fines levied by CBI Court. The merits of the case have not been discussed at all. Hence, it would not be correct to conclude that the Hon'ble High Court has suspended the conviction of the applicant. Hon'ble High Court has merely suspended the sentence imposed by the CBI Court and ordered the applicant to be enlarged on bail subject to execution of the bail bond.
13. The Hon'ble Apex Court in its judgment dated 02.08.2021 in the case of K.C. Sareen Vs. C.B.I., Chandigarh in Appeal (crl.) No. 770 of 2001 has held that when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings.
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14. The applicant has been convicted by the CBI Court and the conclusion drawn by the Disciplinary Authority is that this is a case of mis-conduct by the applicant which has led to his conviction on a criminal charge.
15. The Hon'ble Apex Court in the case of Union of India and others V/s Shri. Ramesh Kumar dated 02.09.1997 has held that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge.
16. Keeping in view, the above facts, the present OA seeking quashing of orders imposing penalty on the applicant of "removal from service" is devoid of any merit whatsoever, and deserves to be dismissed.
17. Accordingly, the OA is dismissed. However, there shall be no order so as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S SUJATHA)
MEMBER (A) MEMBER (J)
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