Punjab-Haryana High Court
Bharat Sanchar Nigam Limited And Others vs Central Administrative Tribunal on 15 March, 2013
Author: Surya Kant
Bench: Surya Kant
CWP No. 23581 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 23581 of 2011 (O&M)
Date of decision: 15.3.2013
Bharat Sanchar Nigam Limited and others
..... Petitioners
Versus
Central Administrative Tribunal, Chandigarh Bench, Chandigarh and
anothers
..... Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR.JUSTICE R.P. NAGRATH
PRESENT: Mr. Anil Rathee, Advocate for the petitioners.
Mr. N.P. Mittal, Advocate for respondent No. 2.
SURYA KANT, J. (ORAL)
Bharat Sanchar Nigam Limited (BSNL) and its authorities impugn the orders dated 29.7.2011 and 23.9.2011(Annexure P-3 and P-5, respectively) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh, whereby the order dated 7.8.2003 (Annexure P-12), removing respondent No. 2 from service by dispensing with the enquiry and by invoking powers under 2nd Proviso to Article 311 (2) of the Constitution read with Rule 19 (ii) of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short 'the 1965 Rules') as well as the appellate order have been set aside and a direction has been issued to release the consequential monetary benefits. CWP No. 23581 of 2011 -2-
2. The relevant facts may be noticed briefly. The second respondent joined as a Lineman in July, 1981 and was further promoted as Phone Mechanic. While the second respondent was posted in the Telephone Exchange at Jalal, District Bathinda, he is said to have started absenting from duty w.e.f. 29.2.2000 to 14.3.2000 and thereafter from 15.3.2000 to 30.9.2000. When he was absent from duty w.e.f. 6.11.2000 and had gone to his native village in Uttar Pradesh, the second respondent allegedly committed an offence punishable under Section 302 of the Indian Penal Code (IPC) on 14.3.2001. He was arrested on 21.3.2001 and remained in custody till he was released on bail on 16.7.2001 by the Additional Sessions Judge, Ambedkar Nagar, Uttar Pradesh. The second respondent thereafter is claimed to have resumed his duties in Telephone Exchange at Jalal, District Bathinda on 13.3.2002 though the petitioner- Department disputes this fact. Since no salary was paid to the second respondent after his alleged joining of duty on 13.3.2002, he wrote a letter-cum-representation dated 3.6.2003 (Annexure P-10) to the General Manage Telegram Distt., BSNL, Bathinda which deserves to be reproduced in extenso:-
"With due respect and most humbly it is submitted that I have resumed my duty on 13.3.2002 and continuously performing my duty. But I am not being paid any salary for the last 16 months. From time to time, I have brought the matter in the knowledge of the concerned authorities including yourself but all in vain.CWP No. 23581 of 2011 -3-
My family is starving for the last two months, resulting in mental pressure on me. Due to illness and mental torture I am unable to keep my mind in balance positive which may lead to some untoward incident for which I shall not be responsible.
You are therefore, respected to kindly look into the matter personally and get my pay released within 3 days, failing which I will be compelled to go the other agencies i.e. Human Rights Commission, Press, High Court etc. The responsibility for the consequences will be personally yours."
3. He submitted another representation for the release of salary on 12.6.2003 (Annexure P-11).
4. Soon thereafter the Competent Authority passed the order dated 7.8.2003 (Annexure P-12) removing the second respondent from service after observing that due to the threats extended by him to the employer through the above reproduced letter and the environment created by him "it is not reasonably practicable to hold enquiry against Sh. J.B. Singh as contemplated by Article 311(2) of the Constitution or Rule 19(ii) of the 1965 Rules".
5. The second respondent preferred departmental appeal which was dismissed and thereafter he approached this Court in a writ petition which was transferred to the Central Administrative Tribunal for final adjudication. It may be mentioned at this stage that during the pendency of the writ petition/Original Application, the second respondent was held CWP No. 23581 of 2011 -4- guilty in the criminal case under Section 302 IPC registered against him on 14.3.2001 and sentenced to life imprisonment on 20.3.2009.
6. Meanwhile, the Original Application filed by the second respondent was taken up for final disposal by a two Member Bench of the Tribunal, however, the Members differed in their views hence the matter was referred to the Third Member who vide order dated 23.9.2011 (Annexure P-5) agreed with the view of the Member (Judicial) to hold that the power under 2nd proviso to Article 311(2) of the Constitution could be invoked in exceptional circumstances and no such circumstances ever existed in the instant case where the enquiry could not be held. Resultantly, the order of removal of respondent No. 2 dated 7.8.2003 (Annexure P-12) was quashed and so was the fate of the appellate order. A direction was issued to release the consequential benefits though with liberty to the Competent Authority to pass an appropriate order keeping in view the subsequent event, namely, conviction and sentence of the second respondent in the murder case.
7. The aggrieved Department has approached this Court.
8. We have heard learned counsel for the parties.
9. There is indeed no quarrel that the power under 2nd proviso to Article 311(2) is an exception to Article 311 (1) whereunder the incumbent of a civil post is protected from dismissal, removal or reduction in rank save a reasonable opportunity of being heard given to him. An exception to the Constitutional mandate, thus, can be inevoked in exceptional circumstances only. Whether there existed exceptional circumstances justifying invoking of power under 2nd proviso to Article CWP No. 23581 of 2011 -5- 311(2) of the Constitution depends upon the facts and circumstances of each case, which are required to be considered in the light of the well settled parameters laid down by the Apex Court in a string of decisions starting from Union of India and another Vs. Tulsi Ram Patel, 1985 (3) SCC 398.
10. Applying those principles to the facts and circumstances of the case in hand, it may be noticed at the outset that the only circumstance weighed with the authorities to invoke the 2nd proviso to Article 311 (2) of the Constitution and dispense with the enquiry against the second respondent was his application-cum-representation dated 3.6.2003 (Annexure P-10) which we have reproduced in extenso in paragraph No. 2 of this order. In the said representation, respondent No. 2 claimed to have resumed the duty on 13.3.2002 and was alleging non- payment of salary for the last 16 months. He also stated that his family was starving due to which he was under a lot of mental pressure. He expressed his anguish by saying that "due to illness and mental torture I am unable to keep my mind in balanced position which may lead to some untoward incident for which I shall not be responsible". In the penultimate paragraph of the representation, the second respondent said that he would make complaint to the Human Rights Commission, Press, High Court etc.
11. In our considered view, the contents of letter dated 3.6.2003 (Annexure P-10), in no circumstances can amount to wielding threat to the Disciplinary Authority or to the witnesses to prevent them from charge-sheeting or deposing against the second respondent. It is not even CWP No. 23581 of 2011 -6- remotely suggested that the second respondent ever threatened the officials who were maintaining his service record or made an attempt to temper with the record to get himself marked present though he was allegedly absenting from duty for months. It thus appears that if the respondent had committed the mis-conduct of absence from duty, there was nothing to prevent the Competent Authority from holding the departmental enquiry and to prove the said allegation against him. Similarly, mere registration of FIR on 14.3.2001, be that may for a heinous crime like murder under Section 302 IPC, was not sufficient to dispense with the requirement of reasonable opportunity of being heard guaranteed to a civil servant under Article 311 (1) of the Constitution. Consequently, we hold that the Tribunal's order to the extent of setting aside the decision of dispensation of enquiry against respondent No. 2 calls for no interference by us and we upheld the same.
12. We are, however, of the considered view that once the second respondent was arrested in a murder case on 21.3.2001 and remained in custody for more than 48 hours, he was deemed to be under suspension by virtue of Rule 10 of the Rules ibid. It is well settled that an employee shall continue under suspension unless the suspension is revoked and he is ordered to be reinstated by the Competent Authority. No such order was passed by the Competent Authority till respondent No. 2 came to be convicted under Section 302 IPC on 20.3.2009.
13. The venue of disciplinary action taken/contemplated against respondent No. 2 would have thus shifted to under Clause (a) to the 2nd proviso to Article 311(2) of the Constitution which enables the CWP No. 23581 of 2011 -7- Competent Authority to dismiss, remove or reduce in rank an employee "on the ground of conduct which has led to his conviction on a criminal charge". No occasion arose for the Competent Authority to exercise the aforesaid power in the instant case as much before conviction of respondent No. 2 on 20.3.2009, he had been removed from service on 7.8.2003 by dispensing with the enquiry . We have no doubt in our mind that conviction for an offence under Section 302 IPC involves moral turpitude and the Competent Authority shall always be well within its constitutional right to dismiss or remove such a convict-employee from service by invoking its power under Clause (a) of 2nd proviso to Article 311(2) of the Constitution.
14. As a result of the above discussion, it emerges out that (i) the second respondent shall be deemed to have been placed under suspension w.e.f. 14.3.2001; (ii) his removal from service by dispensing with departmental enquiry vide order dated 7.8.2003 is wholly unjustified and has rightly been set aside by the Tribunal; and (iii) nothing precluded the Competent Authority to dismiss or remove respondent No. 2 from service w.e.f. 20.3.2009 by invoking its powers under Clause (a) of 2nd proviso to Article 311(2) of the Constitution, on the basis of conduct of respondent No. 2 which led to his conviction in a case under Section 302 IPC.
15. We are also satisfied that it is a fit case to invoke our discretionary powers under Article 226 of the Constitution and to direct that the date of removal from service of respondent No. 2 shall stands postponed from 7.8.2003 to 20.3.2009 and as a consequent thereto, respondent No. 2 shall be deemed to be under suspension for the CWP No. 23581 of 2011 -8- interregnum till his removal from service on 20.3.2009. We ordered accordingly.
16. The second respondent shall thus be entitled to subsistence allowance in accordance with rules w.e.f. 14.3.2001 till 19.3.2009 and the same shall be released as early as possible but not later than three months from the date of receipt of certified copy of this order.
17. The order of the Tribunal to the extent of permitting the Competent Authority to dismiss/remove respondent No. 2 from service on the basis of his conviction vide order dated 20.3.2009, is resultantly infructuous.
18. Since respondent No. 2 is alleged to have committed the misconduct like absence from duty before his deemed suspension on 14.3.2001, the Disciplinary Authority shall be well within its right to take disciplinary action against him for such misconduct in accordance with Rules without prejudice to and/or independent of the order of removal which has become effective from 20.3.2009.
19. Dasti.
( SURYA KANT )
JUDGE
March 15, 2013 ( R.P. NAGRATH )
rishu JUDGE