Central Administrative Tribunal - Hyderabad
P Uma Maheswara Rao vs Comptroller And Auditor-General Of ... on 7 June, 2023
OA No.21/01450/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA No.21/01450/2015
Reserved on: 02.03.2023
Pronounced on: 07.06.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Hon'ble Mr. B. Anand, Administrative Member
P. Umamaheswara Rao, S/o. P. Radha Krishna,
Aged about 40 years, Occ: Senior Auditor,
O/o. Principal Accountant General,
Saifabad, Hyderabad.
...Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. Union of India, Rep. by
Comptroller and Auditor General of India,
No. 10, Bahadurshah Zafar Marg, New Delhi - 124.
2. The Principal Accountant General (G & SSA),
Saifabad, Hyderabad - 500004.
3. The Senior Deputy Accountant General (Admn),
O/o. Principal Accountant General (G & SSA),
A.P. and Telangana, Saifabad, Hyderabad - 4.
4. The Senior Audit Officer (Confidential Cell),
O/o. Principal Accountant General (G & SSA),
A.P. and Telangana, Saifabad, Hyderabad - 4.
....Respondents
(By Advocate: Mr. K. Ajay Kumar, SC for IA & AD)
Page 1 of 10
OA No.21/01450/2015
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The OA is filed seeking the following relief:
"...to call for the records pertaining to the 3rd respondent Office Order No. 03 vide Lr. No. PAG (G&SSA)/CoC/DC-1/8-259/2015-16/05 dated 10.04.2015 and the 2nd respondent orders dated 24.08.2015 communicated vide the 4th respondent Memo. No. PAG (G&SSA)/CoC/DC-1/8-259/2015-16/41 dated 24.08.2015 confirming the penalty imposed by the disciplinary authority and quash and set aside the same as illegal, arbitrary and violative of the rules on the subject matter and consequently declare that the applicant is entitled for all consequential benefits including pay and allowances for the period from 10.10.2011 to 27.03.2014 along with continuity of service, seniority, counting of the period for all practical purposes as service, in the interest of justice ..."
2. Facts of the case are that, the applicant joined the respondents as a Clerk in 2000, was promoted as Auditor and Senior Auditor in 2006 and 2009 respectively. He was implicated in a criminal case vide CC No. 291/2007 under Section 498-A of IPC and Section 3 & 4 of the Dowry Prohibition Act at the instance of his wife, which resulted in his conviction by the 13th Addl. Chief Metropolitan Magistrate, Hyderabad vide order dt. 29.06.2011, which was confirmed by the 4 th Addl. Metropolitan Sessions Judge, Hyderabad vide order dt. 24.06.2013 and the same was challenged before the Hon‟ble High Court and during the pendency of the said proceedings, the wife of the applicant, sought compounding of the offences and to set aside the conviction of the applicant. Hon‟ble High Court vide its judgment dt. 05.12.2013 acquitted the applicant.
3. In the meanwhile, soon after conviction of the applicant by the 13th Addl. CCM, Hyderabad, the respondents issued notice to the applicant under Rule 19 of CCS (CCA) Rules on 30.11.2011 proposing to impose penalty of removal on him, to which, the applicant submitted explanation on 12.12.2011. However, the 3rd respondent vide order dt. 19.12.2011 Page 2 of 10 OA No.21/01450/2015 imposed the penalty of removal from service. Challenging the same, he filed OA 151/2012, which was disposed of on 03.01.2014 directing reinstatement of the applicant into service within a period of 3 months, in view of his acquittal by the Hon‟ble High Court and accordingly, he was reinstated into service vide order dt. 27.03.2014.
4. Subsequently, respondents issued a Memo dt. 08.10.2014 proposing minor penalty proceedings against him under Rule 16 of CCS (CCA) Rules, with three charges of his failure to inform about registering an FIR against him and his members; failure to inform about his conviction by the court on 29.07.2011 immediately; and that he accepted dowry at the time of his marriage. The applicant submitted explanation to the said charge memo on 20.10.2014, stating that though an FIR No. 40/2006 was registered on 06.02.2006, he did not know about the same till 30.08.2006 when the Police came to the office and the office also gave a letter dt. 30.08.2006 to him and thus, the respondents also had knowledge about the same. The applicant was not arrested at any point of time and there was no suppression of material facts by him. On the date of his conviction on 29.06.2011, he was granted bail enabling him to file appeal and he informed the respondents about his conviction on 02.09.2011. Regarding demand of dowry by him, the applicant submitted that the said charge is totally unfounded as there is no proof. Not being satisfied with the said explanation, the disciplinary authority proceeded further and passed an order dt. 10.04.2015 imposing the penalty of „reduction to a lower stage in the Pay Band-2 by one stage i.e. from Rs.11,170/- + Grade Pay Rs.4,200/- to Rs.10,720/- + Grade Pay Rs.4,200/- for a period of three years without Page 3 of 10 OA No.21/01450/2015 cumulative effect‟ on the applicant. The period of his suspension from 10.10.2011 to 18.12.2011 was treated as duty for all purposes, whereas the period from the date of „removal from service‟ i.e. 19.12.2011 till the date of his reporting back to his duties i.e. 27.03.2014, was treated as dies-non. Aggrieved by the same, the applicant preferred an appeal on 22.05.2015 and the same was disposed by the appellate authority vide order dt. 24.08.2015, confirming the penalty of reduction imposed by the disciplinary authority. However, in regard to the treatment of the period of service from 19.12.2011 to 27.03.2014, the appellate authority observed that, if the applicant so desires, he is allowed to get the said period converted into leave of any kind due and admissible.
5. It is contended by the applicant that the acquittal by the Hon‟ble High Court conclusively decides the subject matter and accordingly, this Tribunal directed for his reinstatement in the earlier OA and therefore, the respondents cannot make such an allegation once again. It is further contended by the applicant that, composition of an offence under Section 320 (8) Cr.P.C. shall have the effect of an acquittal of the accused with whom the offence has been compounded. The penalty imposed by the disciplinary authority, as confirmed by the appellate authority, is unwarranted and unjustified.
6. The respondents filed reply statement, wherein the factual matrix of the case, is not much under dispute. It is submitted that the applicant was acquitted only on account of a compromise between the applicant and his Page 4 of 10 OA No.21/01450/2015 wife and the acquittal is not based on merits of the case. Pursuant to the order of this Tribunal in OA 151/2012, the applicant was reinstated into service vide order dt. 27.03.2014, without prejudice to the departmental action, if any, proposed to be initiated against him. Thereafter, the applicant was issued with a minor penalty charge memo on 08.10.2014, to which, he submitted his defence on 20.10.2014. It is submitted by the respondents that it is improbable that the applicant was not aware till 30.08.2006 about registration of FIR against him on 06.02.2006. Only when the Police approached the administration on 30.08.2006, the office directed the applicant to report to the Police. Further, the applicant did not inform about his conviction for about two months. Respondents pleaded that the applicant did not exhaust the remedy of review petition before the Revisionary Authority before filing this OA. As per Rule 13-A of CCS (Conduct) Rules, 1964, no Government servant shall give or take or demand dowry. In the instance case, the applicant was convicted and as per the CCS (CCA) Rules, 1964, conviction by a criminal court, amounts to misconduct. They cited the judgment of the Hon‟ble Supreme Court in R.P. Kapur v. Union of India, AIR 1964 SC 787, in support of their claim that departmental proceedings can proceed even though a person is acquitted when the acquittal is not honorable one. As per FR 54-A(3), if the removal of a government servant is set aside by the court on the merits of the case, the period intervening between the date of removal including the period of suspension preceding such removal, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid full pay and allowances for the period, to which he would have been entitled. The Page 5 of 10 OA No.21/01450/2015 respondents further stated that the Hon‟ble Supreme Court, in Dy. Director of College Education v. Nagoor Meera (1995) 3 SCC 377 observed that if the employee is acquitted on appeal or other proceeding, the order has to be revised. However, though reinstated into service, the employee shall not be entitled to any back wages.
7. The applicant filed rejoinder, wherein, more or less, he has reiterated the averments made in the OA. The applicant stated that he was convicted on 29.06.2011 and upon challenge, his conviction was immediately suspended. Hence, the delay in informing the respondents about his conviction is not a grave misconduct. He has further stated that, if the misconduct is, in any way, connected with the departmental activities, the department may hold an inquiry despite acquittal. But, in the instant case, it is a purely family matter and the department is not having any additional evidence even to prove the case on preponderance of probability. That, the contention of the respondents that he has not exhausted remedy of review petition is not tenable inasmuch as final order has been passed on his appeal.
8. Heard learned counsel for the parties and perused the material on record.
9. This is the second round of litigation. Earlier, challenging his removal from service, the applicant filed OA 151/2012 and this Tribunal, vide order dt. 03.01.2014, passed the following order:
"The applicant has filed the OA, challenging the action of the respondent in removing him from service under Rule 19(1) of the Central Civil Services Page 6 of 10 OA No.21/01450/2015 (Classification, Control and Appeal) Rules, 1965 on account of his conviction in the Criminal case.
2. In fact, by the date of filing of the OA, Revision filed by the applicant is still pending and he was not acquitted. Subsequently, the applicant filed rejoinder showing that by virtue of orders granted in Crl. R.C.M.P. No. 3854 of 2013 in Crl. R.C. No. 1279 of 2013, he was acquitted.
3. Perusal of the order of the Hon'ble High Court in the above Crl. R.C.M.P. would show that his conviction and sentence is set aside. Now, the learned counsel for the applicant submits that as the applicant is acquitted, his order of removal shall be set aside.
4. Learned standing counsel for the respondents contends that in case the applicant is acquitted in the criminal case, he can file representation before the concerned authorities i.e. before the respondents for revocation of the order of the removal from service.
5. It is not the contention of the respondents that applicant is facing any departmental proceedings. In the elaborate counter, nothing is stated with regard to the same and counter shows that on account of the applicant's conviction in the criminal case only, he was removed from service.
6. Now that the applicant is acquitted, he has to be taken back into service. Hence, we dispose of this OA with a direction to the respondents to pass orders with regard to reinstatement of the applicant within a period of three months from today. With regard to his salary during the period of his removal, decision shall be taken by the department as per rules. With the above direction, this OA is disposed of. No costs."
As seen from the above order, the acquittal of the applicant consequent to compounding of the offence was taken note of by this Tribunal in the earlier OA and the respondents were accordingly directed to reinstate the applicant into service and the said order was complied with by reinstating the applicant. The very basis for imposing the penalty of removal from service on the applicant was his conviction, which was set aside. Thus, the respondents cannot once again contend that the acquittal of the applicant was not on merits of the case. After reinstating the applicant in 2014, the respondents issued minor penalty charge memo levelling three charges of his not informing the department in time about registration of FIR against him in 2006 and the order of his conviction in 2011, and the third charge Page 7 of 10 OA No.21/01450/2015 being acceptance of dowry by him at the time of marriage. In regard to the first charge relating to his not intimating the respondents about the registration of FIR, the applicant submitted that he himself came to know about the same through the office on 30.08.2006 when the Police intimated the office on that date. Regarding second charge about not informing about his conviction in time, the applicant stated that he appealed against the conviction immediately and the same was suspended and thereafter, he informed the respondents. Though, admittedly, there was delay in informing the department by the applicant about FIR being registered against him and also about his conviction, there appears to be no wilful suppression, as explained by the applicant and the said delay did not occasion any loss or inconvenience to the administration and more so, when the applicant was not arrested/ detained at any point of time in connection with the subject criminal case.
10. Whereas, in so far as the third charge about acceptance of dowry by the applicant is concerned, the very order of conviction and sentence passed by the 13th Additional Chief Metropolitan Magistrate, Hyderabad, as confirmed by the IV Additional Metropolitan Sessions Judge, at Hyderabad were set aside by the Hon‟ble High Court. As contended by the applicant, Section 320(8) of Cr.P.C. provides that the compounding of an offence shall have the effect of an acquittal of the accused for all practical purposes.
11. In the context of matrimonial dispute, like the one, in which, the applicant was allegedly involved, Hon‟ble High Court of Judicature of Page 8 of 10 OA No.21/01450/2015 Bombay, Bench at Aurangabad in Criminal Application No. 1122 of 2021, vide its judgment dt. 07.01.2023 held as under:
"5. Since the First Information Report in question emanates from matrimonial dispute, it would be relevant to refer to the case of Kahkashan Kausar alias Sonam and Others vs. State of Bihar and others, (2022) 6 SCC 599, wherein the Apex Court has observed that "incorporation of Section 498-A of I.P.C. was aimed at preventing cruelty committed upon a woman by her husband and her in- laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498-A I.P.C. as instruments to settle personal scores against the husband and his relatives." The Apex Court, upon considering the previous judgments relating to quashment of F.I.R. in respect of offence punishable under Section 498-A of the I.P.C. has observed in paragraph no.17 thus,-
"17. ... this Court has at numerous instances expressed concern over the misuse of Section 498-A I.P.C. and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long- term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."
In a latest judgment dt. 31.05.2023 in WP (C) No. 5718/2023, Hon‟ble High Court of Delhi in Vikram Ruhal v. Delhi Police & ors, observed that "The Competent Authority as well as the learned Tribunal appear to have ignored the fact that there is a growing tendency amongst the women to rope in all the relatives including minors in case an FIR is lodged with reference to matrimonial disputes. Many of such complaints are eventually either settled between the families/spouses and are later on stated to have been filed in the heat of the moment over trivial issues. The abuse of the aforesaid provision has been substantially noticed though the salutary purpose of the enactment cannot be ignored in any manner..."
12. In view of the above position, the penalty of reduction of pay by one stage for three years without cumulative effect, imposed by the disciplinary Page 9 of 10 OA No.21/01450/2015 authority, as confirmed by the appellate authority, is not justified and the same is accordingly set aside. However, in so far as the period from the date of removal till his reinstatement i.e. from 19.12.2011 to 27.03.2014, the respondents are directed to treat the said period as duty for all purposes like notional seniority, pay fixation, etc., but, without back wages.
13. In the result, the OA is allowed to the extent indicated above, with no order as to costs.
(B. ANAND) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
//evr//
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