Union Of India (Uoi) And Ors. vs Shri Vimal Kumar
2006 Latest Caselaw 1319 Del

JUDGMENT

Manmohan Sarin, J.

Page 2846

1. Petitioners-Union of India, The Chairman, Central Board of Excise and Customs, The Chief Commissioner of Customs and Central Excise Commissionerate, Meerut assail in this writ petition the judgment dated 6.5.2004 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal'). By the impugned judgment, the Tribunal had partly allowed the OA filed by the respondent and set aside the orders passed by the petitioners holding the respondent to be in deemed suspension w.e.f. 1.3.2000. The Tribunal also held the respondent to be entitled to the treatment of the said period for consequential benefits of pay and allowances, as per FR-54.

2. Petitioners contend that where order of dismissal or removal of service is set aside by a Court of Law and where enquiry had been dispensed with under the provisions of Article 311(2)(b) of the Constitution of India and under rule 19(2) CCS (CCA) Rules and a further enquiry is ordered, the employee can be put in deemed suspension from the original date of dismissal or removal from service under Sub-rule 4 of Rule 10 of CCS (CCA) Rules.

3. This case has a chequered history. The relevant facts may be noticed in brief:

(i) Respondent Vimal Kumar, Superintendent, Central Excise, Meeru Division was dismissed from service w.e.f. 1.3.2000, invoking the provision of Article 311(2) of the Constitution of India read with Rule 19(2) of the CCS (CCA) Rules. The conduct which led to his dismissal was remaining absent from duty between 16.2.2000 and 29.2.2000 and participating in activities prejudicial to the interests of the State in provoking and inciting other staff members into acts leading to intimidation, gheraoing, threatening senior officers on 17th and 29th of February, 2000. Respondent claimed himself to be the General Secretary of Meerut Unit of All India Federation of Central Excise, Gazetted Officers Association, an unrecognized body. Respondent is alleged to have created an atmosphere of terror, propagating insubordination. In these circumstances, the order of dismissal was passed holding the inquiry to be impracticable after taking the advice of UPSC also. Respondent filed an appeal against the order of dismissal. The appeal was dismissed by the President upholding order of the Disciplinary authority on 10.4.2001.

(ii) Respondent approached the Tribunal in OA No. 2457/2001. The Tribunal vide its order dated 3.8.2002, quashed the order of dismissal and the appellate order with liberty to the department to conduct an inquiry in accordance with Rules, laws and instructions. Petitioners filed CWP No. 764/2003 challenging the order of the Tribunal dated 3.8.2002 in the High Court, which was withdrawn with liberty to approach the Tribunal by way of Review Petition. Review Petition preferred against judgment/order dated 3.8.2002 was also dismissed by Tribunal vide orders dated 12.5.2003. Contempt petitions were filed by the respondent wherein time was granted to the petitioners to comply with the orders.

Page 2847

(iii) Petitioners, thereafter, in compliance with the order of the Tribunal permitting them to hold the inquiry, passed an order dated 28.5.2003, ordering further inquiry inter alia invoking the provisions under Sub-Rule 4 Rule 10 of CCS(CCA) Rules holding the respondent to have been placed under deemed suspension from 1.3.2000 and to remain under suspension till future orders. Vide subsequent orders dated 5.6.2003, respondent was permitted to draw subsistence allowance admissible under FR-53. The above orders dated 28.5.2003 and 5.6.2003 were challenged by the respondent in OA No. 1678/2003. The Tribunal, as noted earlier, partly allowed the OA setting aside the order dated 28.5.2003 and 5.6.2003 in so far as they deemed the applicant to be under suspension w.e.f. 1.3.2000.

4. The question under consideration is whether in these circumstances the petitioners could invoke Sub-Rule 4 of Rule 10 of CCS(CCA) Rules. The said Rule, for the facility of reference, is reproduced:

Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.

5. Mr. Sinha, counsel for the petitioners submitted that for invoking Rule 10(4), it is not necessary that there should have been an earlier inquiry. Rule 10(4) according to him is available also in cases where the order of disciplinary authority being an order of dismissal or other penalty imposed by the authority is set aside by a Court of Law. He submits that like in the present case, no inquiry was conducted while invoking provisions of Article 311(2)(b) of the Constitution of India and Rule 19(2) of CCS(CCA) Rules. He submits that since inquiry was dispensed with, there was no question of suspending the respondent at that stage. However, since the order of dismissal has been set aside by the Tribunal, the provision of Rule 10(4) was pressed into service for deemed suspension of respondent from 1.3.2000, i.e., the original date of dismissal pending further inquiry. He also sought to draw support from judgment of the Supreme Court reported in Nelson Motis v. Union of India reported at , which dealt with challenge to the constitutional validity of Rule 10(3) and 10(4). Mr. Sinha also sought to Page 2848 distinguish the case Mahender Singh v. Union of India and Ors. reported at 1991 Supp. (2) SCC 127 by urging that it dealt with temporary service rules and it was a discharge simplicitor. This distinction is of no consequence or relevance as would be seen from the specific observations of the Supreme Court in the cited case.

6. The Supreme Court in Nelson Motis v. Union of India (supra), while repelling the challenge to the constitutional validity of sub-Rule (3) and (4) of Rule 10 has spelt out the category of cases where sub-Rule (3) is attracted and those where Sub-rule (4) is attracted, the Court held that the classification between Sub-rule (3) & (4) was founded on intelligible differentia having a rational relationship to the object of the Rules and Rule 10(4) was held as constitutionally valid.

It would be seen from the foregoing that the above authority does not address or deal with question arising in the present case, which is, whether Sub-Rule (4) of Rule 10 can be invoked when there has been no inquiry at all. Rather, the judgment proceeds on the basis that there has been an inquiry where the disciplinary authority has recorded a finding on the charges. The cited case is thus, of no avail to the petitioner.

7. In our view, the submissions made by learned Counsel for the petitioners are wholly devoid of merit. The plane language of Sub-Rule (4) of Rule 10 mentions "further inquiry". Thus, the sine qua non for invoking Sub-Rule (4) for applying the provision of deemed suspension from the date of dismissal, is a dismissal which, following an inquiry, is set aside and a "further inquiry" is ordered. In the instant case, there has been no inquiry and as such, there could be no invocation of Sub-Rule (4) of Rule 10. The matter, in fact, is no longer res integra in view of the judgment of the Supreme Court in Mahender Singh's case extract from which is reproduced below. The said observations wholly repel the submissions now sought to be made by the petitioner. Reference can be usefully made to para 6 and para 9 of the judgment:

6. There are three requirements for the application of Rule 10(4); (i) the government servant is dismissed, removed or compulsorily retired as a measure of penalty; (ii) the penalty of dismissal, removal or compulsory retirement is set aside or declared or rendered void by a decision of a court of law; (iii) the disciplinary authority, decides to hold a further inquiry against the government servant on the allegations on which the original order of penalty was imposed. If these three requirements are satisfied then the government servant shall be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty of Page 2849 dismissal, removal or compulsory retirement and he shall continue to remain under suspension until further orders.

9. The power to place delinquent officer under suspension from the date of the original order of dismissal, removal or compulsory retirement from service would be available provided if the original order of dismissal, removal or compulsory retirement from service was made by way of penalty and that order has been set aside by a court of law. Since there was no inquiry leading to the removal of the appellant in the first instance, the decision to hold fresh inquiry does not attract Rule 10(4). The retrospective suspension of the appellant is, therefore, unjustified and without authority of law.

8. In view of the foregoing discussion, there is no merit in the writ petition. The Tribunal has rightly held that Sub-Rule (4) of Rule 10 could not have been invoked to place the respondent under deemed suspension from the date of original dismissal. There is no infirmity or error in the impugned judgment of the Tribunal.

Writ petition is dismissed.