T. Balram vs Union Of India And 4 Others
2021 Latest Caselaw 2528 Tel

       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.

                                               2                           ARR,J & Dr.SA,J
                                                                    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

(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.

                                    4                           ARR,J & Dr.SA,J
                                                         W.P.Nos.19986/2021 & batch

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