Central Administrative Tribunal - Delhi
Inder Kumar Hasani vs Indian Tourism Development ... on 3 January, 2023
1
OA No.480 of 2017
Court No.3 (item No.30)
Central Administrative Tribunal
Principal Bench
OA No.480/ 2017
Reserved on: 16.12.2022
Pronouncement on: 03. 01. 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
Shri Inder Kumar Hasani
S/o Late Shri Gordhan Das Hasani
Age about 56 years
Group-C
R/o-10/26, 2nd Floor
Nehru Nagar,
New Delhi-110065
-Applicant.
(Through Advocate: Ms.Parul Manral with
Sh.Vikas Kumar, Mr. Manish Paliwal)
Versus
Indian Tourism Development Corporation
Through its Chairman & Managing Director
Scope Complex, Core 8, 6th Floor
Lodhi Road, Near Jawaharlal Nehru Stadium New
Delhi-110003.
-Respondent.
(Through Advocate: Mr. Ansul Mishra for Mr.
Ujjawal K Jha)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
Shri Inder Kumar Hasani (the applicant herein) was working as a APS in the Indian Tourism 2 OA No.480 of 2017 Court No.3 (item No.30) Development Corporation (ITDC) and was deputed to Ministry of Tourism. While, he was working in the Ministry of Tourism, he remained absent from 16.5.2011 onwards. Prior to that, he had taken casual leave from 11.5.2011 to 13.05.2011. However, after expiry of his sanctioned casual leave he did not join his place of duty, i.e., in the Ministry of Tourism, Government of India. Notices were issued to Shri Inder Kumar Hasani, APS at his residential address on 20.5.2011 and 27.5.2011 to report for duty without further delay. In the meanwhile, Ministry of Tourism has forwarded a complaint dated 14.6.2011 by one Shri Raj Kumar Gurnani alleging that Shri Inder Kumar Hasani, APS, ITDC has eloped with his wife and the child and they have filed a complaint with Uruli Poslice Station, Distt. Pune, Maharashtra. For his unauthorized absence and other alleged misconduct Shri Shri Inder Kumar Hasani, APS was placed under suspension on 30.05.2011, vide order No.357/HR/DIDC/ITDC/11/15007. In the meanwhile, the police filed an FIR against Shri Inder Kumar Hasani under Section 362, 366, 368 and 497 of the India Penal Code in Uruli Police Station, Distt-Pune.
The Pune Police has arrested him from Hotel Janpath 3 OA No.480 of 2017 Court No.3 (item No.30) on 24th November, 2011. He remained in police custody till 22nd December. 2011 and thereafter he got bail. The criminal proceedings in Session's case No.368/12 were initiated against him in respect of the above mentioned FIR and Sections of the India Penal Code. The Additional Session's Judge, Pune vide his judgment dated 24.6.2014 acquitted Shri Inder Kumar Hasani from all charges.
2. The ITDC initiated disciplinary proceedings against Shri Inder Kumar Hasani on three counts of misconduct. He was charge-sheeted on 31.5.2011 for the three charges. Article No.1 of the memorandum charge sheet states that Shri Inder Kumar Hasani, APS, ITDC remained willfully and unauthorizedly absent from duty w.e.f. 16.5.2011 without prior permission or sanction of leave by the competent authority. By this unauthorized and willful action Shri Inder Kumar Hasani has violated the terms and conditions of his appointment as per the clause 7 of the said letter as well as Rule 14(vi) of ITDC CDA Rules,2010. Article No.2 of the charges also mentions that though Shri Inder Kumar Hasani, APS was directed to join official duty through two official letters 4 OA No.480 of 2017 Court No.3 (item No.30) dated 20.5.2011 and 27.5.2011 delivered at his residential address but he did not report to duty. As per rule 5A of IDC CDA Rules,2010, it is alleged that, it amounted to voluntarily abandoning his services from the corporation. Article No.3 of the charges mentions that Shri Inder Kumar Hasani eloped with wife of Shri Raj Kumar Gurnami and police filed an FIR against him in Uruli Police Station, Distt. Pune under Sections 362, 366 ,368 and 497 of the India Penal Code. By this act Shri Hasani has committed actions and omissions which are violative of General Rule 3.1 (i to v) and he committed misconduct under Rule 4 and Rules 5A of ITDC CDA Rules, 2010. These rules point-out, inter-alia, actions prejudicial to good behavior, in-subordination, negligence to perform duty, indiscipline and unauthorized absence etc. It is alleged that all these acts of Shri Inder Kumar Hasani amounted to conduct which was not in the best interest of or did not enhance the reputation of the company in which he was working. The Inquiry Officer (IO) vide his report dated 7.5.2012 proved all the three charges levelled against Shri Inder Kumar Hasani. The competent Disciplinary Authority vide his order 6.8.2012 agreed with the report of the Inquiry Officer 5 OA No.480 of 2017 Court No.3 (item No.30) and imposed the penalty of dismissal from service under rule 23 (B)(x) of TIDC CDA Rules, 2010. Being aggrieved Shri Inder Kumar Hasani filed appeal to the Appellate Authority, who, vide order dated 12.09.2015 upheld the decision of the competent Disciplinary Authority and dismissed his appeal dated 14.7.2014. Shri Hasani preferred to review application before the Reviewing Authority, who vide order dated 19.4.2016 confirmed the order dated 12.09.2014 of the Appellate Authority. Being aggrieved Shri Inder Kumar Hasani has come to this Tribunal in the present OA, seeking the following relief:-
a) To set aside the impugned order dated 19.04.2016 passed by Reviewing Authority in Review Appeal along with the Order passed by Appellate Authority dated 12.09.2014 and other dated 06.08.2012 passed by C.D.A.
b) To release the subsistence allowance, back wages and other benefits earned during the suspension period from 30.05.2011 to 03.07.2011 along with the interest on such payments.
3. Notices were issued to the respondents who have filed their counter affidavit to the in Original Application.
4. The main grounds taken by the applicant in the OA is that parallel disciplinary proceedings have been 6 OA No.480 of 2017 Court No.3 (item No.30) initiated on the same grounds as those were framed against him in the criminal proceedings which was pending before the Court of Additional Session Judge, Pune. He has cited the judicial pronouncements in the case of Ramesh Kumar V. Punjab School Education Board, Sulekh chand & Salek Chand commissioner of Police, The Divisional Controller, KSRTC v. MG. Vittal Rao, Ajit Kumar Nag. vs. General Manager, (PJ), India Oil Corn. Ltd.,, Haldia and others, reported in (2005) 7 SCC 764. The Hon'ble Apex Court has taken similar view in the case of Suresh Pathrella v. Oriental Bank of Commerce, reported in (2006) 10 SCC 572, In the case of Southern Railway Officers Association and Another v. Union of India and others, reported in (2009) 9 SCC 24, in the case of Divisional Controller, Karnataka State Road Transport Corporation v. M.G. Vittal Rao, reported in (2012) 1 SCC 442 as well as in the case of Deputy Inspector General of Police and Another v. S. Samuthiram, Commissioner of Police, New Delhi and Another vs. Mehar Singh: (2013) 7 SCC, wherein it has been held that when an employee who has been acquitted in the criminal cases should not be subjected to disciplinary proceedings on the same 7 OA No.480 of 2017 Court No.3 (item No.30) grounds. Furthermore, he has averred that the Disciplinary as well as the Appellate Authority committed an error by the punishing the applicant on the ground of "moral turpitude" . This is contrary to the judgment by Hon'ble Andhra Pradesh High Court in BHEL & Vessls v. Sreeramachandra Murthy and Anr. Manu/AP/0173/1987. The third ground taken by the applicant is that the punishment of dismissal from service is too harsh. The Disciplinary, Appellate and the Reviewing Authorities should have exhibited compassion on him and should have imposed a lesser penalty.
5. The respondents in their counter affidavit have asserted that it is a settled law that despite acquittal in criminal cases departmental proceedings can be initiated for the misconduct of an employee. They have placed reliance on State of Karnatka and Another vs. T. Venkataramanappa, and State of A.P. vs. K. Allabakash: (2000) 10 SCC 177. He further cited the judgment of Apex Court in the case of Ajit Kumar Nag vs.General Manager ( P.J), Indian Oil Corporation Ltd., Haldia and others, ( 2005) 7 SCC 764: wherein it has been held;
8OA No.480 of 2017 Court No.3 (item No.30) "15. (11) "In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt, he cannot be of convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability"
In addition to the misconduct on account of the matters pertaining to the criminal case particularly eloping with wife of a private individual, the charge sheet has mentioned other factors like unauthorized and willful absence from duty, insubordination and abandoning of official service as well as moral 9 OA No.480 of 2017 Court No.3 (item No.30) turpitude. Hence it cannot be said that the disciplinary proceedings were only on the same grounds as the case which was decided in the Criminal Court. The proceedings in the Criminal Case as well as in the disciplinary case were conducted separately and the Inquiry Officer has given his findings based on the facts and evidence of the case. Shri Inder Kumar Hasani, CO has admitted regarding the unauthorized and willful absence from duty from 16.5.2011 to 22.11.2011 till he was arrested by the Police and he remained in Police Custody from 24.11.2011 to 22.11.2012.
6. The respondents have further asserted that there was no breach of the principle of natural justice during the disciplinary proceedings and Shri Hasani was given adequate opportunity to defend his case at each stage of the disciplinary proceedings. In view of this, the OA is without merit and it should be dismissed.
7. The counsel for the appellant has reiterated the stand taken in the OA and pleaded for leniency in punishment in view of short period absence from duty. 10 OA No.480 of 2017 Court No.3 (item No.30)
8. The learned counsel for the respondents has reiterated the judgments in the case of Ajit Kumar Nag. vs. General Manager, (PJ), India Oil Corn. Ltd.,, Haldia and others, reported in (2005) 7 SCC 764. He argued that the Hon'ble Apex Court has taken similar view in the case of Suresh Pathrella v. Oriental Bank of Commerce, reported in (2006) 10 SCC 572, in the case of Southern Railway Officers Association and Another v. Union of India and others, reported in (2009) 9 SCC 24, in the case of Divisional Controller, Karnataka State Road Transport Corporation v.
M.G. Vittal Rao, reported in (2012) 1 SCC 442 as well as in the case of Deputy Inspector General of Police and Another v. S. Samuthiram, Commissioner of Police, New Delhi and Another vs. Mehar Singh:
(2013) 7 SCC. In all these cases, learned counsel for the respondents argued that, acquittal by the trial court does not ipso facto, absolve the employee from the liability under the disciplinary jurisdiction. He further stated that the Apex Court in several pronouncements has held that despite an acquittal in criminal case departmental inquiry for misconduct can still be held. He cited the case of State of Karnatka and Another vs. T. Venkataramanappa, and State 11 OA No.480 of 2017 Court No.3 (item No.30) of A.P. vs. K. Allabakash: (2000) 10 SCC 177. He asserted that in the instant case the disciplinary proceedings were conducted much before the criminal trial was concluded and the inquiry was based on the evidence brought before the Inquiry Officer, and it was not the same evidence which was placed before the criminal court. In view of these, findings of the criminal court has no bearing upon disciplinary inquiry in the present case. The subsequent acquittal in no manner can be ground to set aside the inquiry report.
9. The counsel for the respondents argued that the penalty imposed in the present case justified as the penalty imposed is neither illegal nor arbitrary. The Disciplinary, Appellate and Reviewing Authorities found that the applicant committed misconduct of serious nature and accordingly they have imposed the penalty of dismissal from service. He has relied on the judgments in case of (i) Union of India vs. Parma Nand (1989) 2 SCC 177, (ii) B C Chaturvedi vs. Union of India (1995) 6 SCC 749, (iii) Shri Vidyalaya and another vs. Patel Anil Kumar ( 1998) 9 SCC 561 (iv) State of Rajasthan and Anr. Vs. Mohammed Ayub Naz (2006) 1 SSC 589.
12OA No.480 of 2017 Court No.3 (item No.30)
10. We have gone through the records of the case thoroughly, perused the pleadings available on records carefully and heard the arguments advanced by the both parties. It is our considered view that in the present case the Inquiry Officer has conclusively proved the charges against the charged official. We find no infirmity in respect of the way the proceedings have been conducted by the Disciplinary Authority. The principle of natural justice has been duly followed during the proceedings before the Appellate and Reviewing Authorities. The unauthorized and willful absence of Shri Inder Kumar Hasani has been conclusively proved because of his own admission. Furthermore he got involved in the elopement with the wife of another married person, which amounted to serious misconduct. We agree with the contentions of learned counsel for the respondents that the criminal acquittal in the present case did not bar to initiate disciplinary proceedings against the delinquent official on grounds of moral turpitude. Moreover, in the present case the acquittal is based on want of proof beyond reasonable doubts. It has been held by the Additional Session Judge in the relevant criminal case 13 OA No.480 of 2017 Court No.3 (item No.30) No. 368/ 2012 that prosecution had miserably failed to prove the alleged guilt of the accused of Shri Inder Kumar Hasani. He was acquitted under Section 235 (2) of the CRPC of the offence punishable under section 363, 366, 376 and 506 of the I.P.C because want of evidence beyond reasonable doubt. Moreover, the three Articles of charges levelled against Shri Inder Kumar Hasani contain grounds which much more than the criminal allegations as contained in the above mentioned FIR. Further, the disciplinary cases and the judgment in which Shri Inder Kumar Hasani was acquitted started parallelly and the initiation of the disciplinary proceedings was prior to the acquittal in the criminal case. In the Disciplinary Proceedings the charges were relating to willful and unauthorized absence, abandonment of duty, and also moral turpitude in view of the fact that Shri Inder Kumar Hasani eloped with wife of a married person and during the same period he remained unauthorizedly absence from office. In view of this, we find no infirmity in the disciplinary proceedings.
11. As far as the quantum of punishment is concerned, it relates to the charges which mainly 14 OA No.480 of 2017 Court No.3 (item No.30) based on unauthorized and willful absence for a period of more than 21 days and Rule 5(A) of ITDC CDA Rules, 2010 states that any unauthorized absence more than 21 days amounts to abandonment of service. The fact that Shri Inder Kumar Hasani eloped with wife of a married person and during the same period he was absent from official duty amounts to misconduct and it has brought dishonor to the organization, i.e., ITDC. However, we take note of the acquittal of Shri Inder Kumar Hasani in the criminal case where the allegations of kidnapping and other offences under various sections of IPC were levelled against him. Shri Inder Kumar Hasani had more than 30 years of service in ITDC. Considering his service record prior to the incident and the fact that the Criminal Court has acquitted him of the criminal charges we are of the considered view that the Disciplinary Authority could have taken a lenient view. Accordingly, the case is remanded back to the Disciplinary Authority to take a considered view of his entire service record and behavior prior to the elopement episode and reconsider the penalty of dismissal from service within a period of 8 weeks. 15 OA No.480 of 2017 Court No.3 (item No.30)
12. The instant OA is disposed of in the above terms. There shall be no order as to costs.
(Dr. Chhabilendra Roul) Ashish Kalia)
Member (A) Member (J)
/mk /