THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
AND
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
WRIT PETITION Nos.19986 & 20043 of 2019 & 16762 of 2021
COMMON ORDER: (Per Hon'ble Dr. Justice Shameem Akther)
Since the facts of the case and the issue involved in these three
writ petitions are similar and since these three writ petitions emerge
out of same common order, these three writ petitions are taken up
together and being disposed of by this common order.
2. Writ Petition Nos.19986 of 2019 and 20043 of 2019 are filed by
Bharat Sanchar Nigam Limited (for short, 'BSNL'), seeking a Writ of
Certiorari to call for the records in respect of common order, dated
15.03.2019, passed in O.A/20/0293/2014 and O.A/21/1846/2015
respectively, by the Central Administrative Tribunal, Hyderabad
Bench, Hyderabad (for short, 'the Tribunal'), and declare the direction
of the Tribunal that "the period during which the 1st respondent was
kept out of service on account of his conviction in a criminal case can be considered for the purpose of computing pension and service benefits and granting the pension and service benefits and for regularization of service" as illegal, arbitrary and contrary to law. W.P.No.16762 of 2021 is filed by the T.Balaram/applicant, challenging the order, dated 15.03.2019, passed in O.A/21/1846/2015, by the Tribunal, insofar as not granting the pay and allowances to him during the period for which he was kept out of service on account of his conviction in a criminal case and also the action of BSNL in not paying pension and gratuity and other retirement benefits, as illegal, arbitrary.
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W.P.Nos.19986/2021 & batch
3. Heard Ms. T.Bala Jayasree, learned Standing Counsel for BSNL appearing for the petitioners in W.P.Nos.19986 and 20043 of 2019 and 2nd respondent in W.P.No.16762 of 2021, Sri P.Giri Krishna, learned counsel for the petitioner in W.P.No.16762 of 2021 and 1st respondent in WP Nos.19986 and 20043 of 2019 and perused the record. The parties hereinafter would be referred to, as they are arrayed before the Tribunal.
4. Learned Standing Counsel for BSNL appearing for the petitioners in W.P.Nos.19986 and 20043 of 2019 and 2nd respondent in W.P.No.16762 of 2021 would submit that the Tribunal, while correctly holding that the applicant is not entitled for pay and allowances for the period during which he was kept out of service on account of his conviction in a criminal case, erred in directing to regularize his service during the said period for the purpose of pension and service benefits. The said direction of the Tribunal is against the law laid down by the Hon'ble Supreme Court in C.R.Radhakrishnan Vs. State of Kerala1. The acquittal of the applicant in the said criminal case is not an honourable acquittal. He was acquitted on technical grounds, i.e., extending the benefit of doubt. Further, there is no legal bar to initiate disciplinary inquiry against the applicant in respect of the same charge, which was leveled in a criminal case, when the applicant was not acquitted on merits. The service of the applicant cannot be regularized for the purpose of pension and service benefits during the period which he was kept out of service on account of his conviction in a criminal case. The Tribunal failed to appreciate that after imposition of penalty of dismissal from service in the year 2006, the applicant did 1 (2017) 13 Supreme Court Cases 365 3 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch not challenge the same before any judicial forum. Standard of proof in a criminal case is entirely different from standard of proof in an inquiry in disciplinary proceedings. No discrimination was shown by BSNL to the applicant and ultimately prayed to allow W.P.Nos.19986 & 20043 of 2019 and dismiss W.P.No.16762 of 2021.
5. On the other hand, learned counsel for the petitioner in W.P.No.16762 of 2021 and 1st respondent in W.P.Nos.19986 and 20043 of 2019 contended that though the Tribunal rightly quashed the Charge Memo issued to the applicant and directed to regularize the service of the applicant for the purpose of pension and service benefits during the period which he was kept out of service on account of his conviction in a criminal case, erred in holding that the applicant is not entitled for pay and allowances for the period during which he was kept out of service. The conviction recorded against the applicant by the trial Court was set aside by the High Court and he was acquitted in the said criminal case. The applicant cannot be subjected to disciplinary enquiry in the year 2015 in respect of the incident, which allegedly occurred in the year 2003. The applicant cannot be made to face departmental proceedings, indefinitely. The applicant retired from service on 31.03.2019 and BSNL has not paid pension and service benefits such as gratuity etc., to the applicant. Only provisional pension is being paid to the applicant. The department cannot withhold his pension and ultimately, prayed to direct the respondents to pay pension, gratuity and other retirement benefits to the applicant for the period during which he was kept out of service on account of his conviction in a criminal case.
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6. In view of the above rival contentions, the point that arises for determination in these three writ petitions is as follows:
"Whether the common order, dated 15.03.2019, passed in O.A/20/1293/2014 & O.A/21/1846/ 2015 with MA 219/2019, by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, is legally sustainable?"
POINT:-
7. The facts of the case, in brief, are that while the applicant was working as a Section Supervisor in BSNL, a trap was laid against him and a charge sheet was filed on the allegation that he demanded illegal gratification of Rs.1,000/- and accepted the same. In view of the applicant's involvement in a criminal case relating to charges of corruption, he was suspended by the Department on 07.03.2003. However, the suspension was revoked on 14.10.2003. The learned Special Judge for CBI Cases, vide judgment dated 31.10.2005, passed in C.C.No.9 of 2003, convicted the applicant and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.10,000/-. Again, the applicant was suspended by the Department on 03.01.2006. The suspension was subsequently revoked on 20.07.2006. Later, the Department invoked Rule 19 of The Central Civil Services (Classification, Control & Appeal) Rules, 1965 (for short, 'CCS Rules') which relates to special procedure, and issued notice, dated 03.01.2006, to the applicant under the said provision. Not satisfied with the explanation of the applicant against the said notice, the BSNL dismissed him from service on 21.07.2006. The applicant challenged his conviction and sentence by filing Criminal Appeal No.1770 of 2005 before the erstwhile High Court of 5 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch Andhra Pradesh. The erstwhile High Court of Andhra Pradesh reversed the judgment passed by the CBI Court, set aside the conviction and sentence and acquitted the appellant of the charges levelled against him. After acquittal, the applicant submitted a representation to the Department to reinstate him into service, but the same was not considered. Therefore, he filed O.A.No.20/293/2014 before the Tribunal seeking a direction to the respondents therein to reinstate him into service with back wages and consequential benefits. After receiving notice in the said O.A., the Department reinstated the applicant into service on 08.05.2014. Thereafter, the Department issued Charge-Memo, dated 30.09.2015, proposing departmental inquiry against him, leveling the very same charge on which the applicant was acquitted in the criminal case. Therefore, the applicant filed O.A.No.21/1846/2015 to quash the said Charge-Memo on the ground that when he was acquitted of the very same charge by the High Court, he cannot be subjected to disciplinary inquiry in the year 2015 in respect of the incident which allegedly occurred in the year 2003, by examining the same witnesses. The Tribunal, having considered the submissions made and the material placed on record, passed the impugned common order, dated 15.03.2019, holding as follows:
"In the result, Charge memo issued against applicant is quashed. Applicant is not entitled for pay and allowances for the period during which he was out of service. For the purpose of pension and service benefits, respondents are directed to regularize the service of the applicant."
Aggrieved by the observation made by the Tribunal that the applicant is not entitled for pay and allowance for the period during which he was kept out of service on account of his conviction in a criminal case, the applicant filed W.P.No.16762 of 2021, whereas, aggrieved 6 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch by the observation made by the Tribunal that for the purpose of pension and service benefits, the respondents are directed to regularize the service of the applicant, the BSNL filed W.P.Nos.19986 and 20043 of 2019.
8. There cannot be any dispute that there is no legal bar to initiate disciplinary inquiry against the applicant in respect of the same charge which was leveled in a criminal case, when the applicant was not acquitted on merits. The material placed on record reveals that the Department imposed penalty of dismissal from service against the applicant by order, dated 21.07.2006, by exercising power under Rule 19 of CCS Rules, basing on his conviction by CBI Court. The applicant challenged his conviction by the CBI Court before the High Court and the High Court set aside his conviction on technical grounds. Here, it is apt to state that a Government employee cannot be subjected to departmental inquiry for an indefinite period. In the instant case, the alleged misconduct of the applicant, i.e., demand and acceptance of illegal gratification of Rs.1,000/- was of the year 2003. The department did not initiate disciplinary inquiry against the applicant till the year 2015. The Hon'ble Supreme Court has time and again held that in service matters, departmental inquiry has to be initiated within a reasonable time and has to be completed within a reasonable time. When there is no legal bar or stay by a competent Court to initiate disciplinary inquiry immediately after detecting the alleged misconduct of the applicant in the year 2003, the Department ought to have initiated the same at the earliest possible time. Department waited for the verdict of the CBI Court and then issued dismissal order, that too by exercising power under Rule 19 of CCS Rules, which permits the Department to dismiss the 7 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch employee based on his conviction in criminal charge, by dispensing with the enquiry. Thus, the intention of the Department appears to be that it wanted to base its decision on the verdict of the CBI Court. Having chosen to act under Rule 19 of CCS rules, which prescribes a special procedure, the Department again cannot issue a charge- memo at a later stage to the applicant proposing to initiate disciplinary enquiry against him, particularly after the lapse of 12 years, i.e., when the employee was on verge of retirement. Under these circumstances, the Tribunal rightly held that the Charge-Memo, dated 30.09.2015, issued by the Department suffers from delay and laches.
9. The learned Standing Counsel for the petitioners, placing reliance on C.R.Radhakrishnan's case supra, would submit that when the acquittal of the applicant is not an honourable acquittal, the Tribunal erred in directing to regularize the service of the applicant for the purpose of pension and service benefits during the period which he was kept out of service. In C.R.Radhakrishnan's case supra, the appellant was aggrieved by denial of full service benefits for the period he was kept out of service on account of his conviction in a criminal case. The conviction was subsequently set aside by the High Court and he was acquitted. Since the appellant therein was acquitted, he contended that he is entitled to full service benefits under Rule 56 of Kerala Service Rules, Part I. The Hon'ble Supreme Court, while discussing the relevant provisions, i.e., Rule 56(1) & (2) of Kerala Service Rules, Part I, held that since the acquittal of the appellant therein was not a honourable acquittal but was only on benefit of doubt and ultimately negated the claim of the appellant therein. Rule 56(1)&(2) of Kerala Service Rules, Part I, is not akin to 8 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch Rule 19 of CCS Rules. Both the Rules distinctly operate. In the instant case, there are no departmental findings in respect of the alleged misconduct on the part of the applicant. The facts of the cited decision are distinct to the facts of the case on hand. Further, similar question arose for consideration in a decision relied by BSNL before the Tribunal {Commissioner of Police and another Vs. Meher Singh (2013) 7 SCC 685}, but the Tribunal did not sustain the submissions made on behalf of BSNL.
10. In the instant case, the Tribunal, after examining the entire material on record, appears to have applied the principle of 'no-work no-pay' and, accordingly, did not grant pay and allowances for the period during which the applicant was kept out of service, but however, directed to regularize the service of applicant for the purpose of pension and service benefits.
11. Here, it is apt to state that the Court issuing a Writ of Certiorari acts in exercise of a supervisory but not appellate jurisdiction. A Writ of Certiorari will be issued for correcting errors of jurisdiction, i.e., when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. A Writ of Certiorari will also be issued when the subordinate Court or Tribunal acts illegally in the exercise of its jurisdiction, when it decides a case without giving an opportunity to the parties to be heard, or violates the principles of natural justice. If a Tribunal, which is competent to enquire into a matter, acts in flagrant disregard of the rules of procedure or violates the principles of natural justice, a Writ of Certiorari can be issued. In the instant case, we do not find such omission or commission on the part of the Tribunal in determining the lis. Further, we do not see 9 ARR,J & Dr.SA,J W.P.Nos.19986/2021 & batch any perversity, patent illegality, irrationality in the common order of Tribunal. The relief sought by the Department in W.P.Nos.19986 & 20043 of 2019 cannot be granted, so also the relief sought by the applicant in W.P.No.16762 of 2021. All these writ petitions are devoid of merit and are liable to be dismissed.
12. Accordingly, these three writ petitions are dismissed. No costs.
Miscellaneous petitions, if any, pending in these three writ petitions, shall stand closed.
____________________ A.RAJASHEKER REDDY, J ____________________ Dr. SHAMEEM AKTHER, J 03rd September, 2021 Bvv