Rajendra M.Chendekar Vs the Union of India and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 APPELLATE SIDE

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 WRIT PETITION NO 4257 of 2005

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 Rajendra M Chendekar .Petitioner

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 VERSUS

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 Union of India & ors.. Respondents

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 Ms Pritam Tendulkar for S S Karkera for
 petitioner
 Ms V S Masurkar with A M Sethna for UOI

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CORAM: A.P.SHAH & D.Y.CHANDRACHUD JJ.

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Dated l9th Aug.2005

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 P.C:

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 . Rule. Respondents waive service. By
 consent, rule is taken up for final hearing
 forthwith.

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 2. This petition takes exception to the orders
 passed by the Central Administrative Tribunal
 dated 7.8.2003 and 9.6.2004 in Original
 Application Nos 527 of 2002 and 393 of 2004
 respectively. The facts are that the petitioner
 while working as Head Mail Peon on 5.6.l999, was
 arrested by the Directorate of Revenue
 Intelligence, Mumbai (DRI) at CST Mumbai
 alongwith one Kishore N Kamble for offence under
 section l35 of the Customs Act and was detained

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 in custody till 22.6.l999. The

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 petitioner was placed under suspension with
 effect from 6.6.l999 in exercise of power
 conferred by Rule l0(2) of the Central Civil
 Services(CCA) Rules, l965 on 29.7.l999. The
 respondents thereafter initiated departmental
 proceedings under Rule l4 of the CCS(Conduct)
 Rules, l964 vide Memo dated 30.6.2000 charging
 the petitioner for the alleged misconduct of
 failure to maintain absolute integrity in
 contravention of the provisions of Rule 3(l)(i)
 of the CCS(Conduct) Rules, l964. The text of
 the article of charge is reproduced below:

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 "That the said Shri R M Chendekar Head
 Mail Peon, ASPO(Inland), Mumbai 99
 though arrested by Police and kept in
 custody from 6.6.l999 to l7.6.l999, he
 alleged to have failed to inform this
 fact to his immediate superior and
 thereby alleged to have violated the
 provisions of Rule 2(l)(iii) of CCS
 (Conduct) Rules, l964".

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 The petitioner submitted his written statement
 denying and disputing the allegation that he

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 committed misconduct within the meaning of
 CCS(Conduct)Rule,l964. Thereafter an inquiry
 was conducted and on the basis of the report of
 the Inquiry Officer the petitioner was dismissed
 from service vide order dated l3.6.200l.

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 3. The petitioner challenged the dismissal
 order by filing Original Application No. 527 of
 2002 before the Central Administrative Tribunal,
 Mumbai. The tribunal held that the penalty in
 the case of petitioner was totally
 disproportionate to the offence and accordingly
 the order of the respondents was quashed and set
 aside and the tribunal remanded the matter back
 to the disciplinary authority to impose any
 penalty other than dismissal, removal or
 compulsory retirement commensurate with the
 guilt. By order dated l2.9.2003 the respondents
 issued revised punishment thereby imposing
 punishment of reduction to his original post of
 Mail Man in minimum scale of Rs.2550 in the time
 scale of Rs.2550-55-2660-60-3200 for a period of
 five years with immediate effect i.e. from the
 date of his actual reinstatement. It was
 further ordered that during the period of
 reduction he will not earn increments of pay and

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 on the expiry of the period, the reduction will
 have the effect of postponing the future
 increments of his pay. The appeal preferred by
 the petitioner to the appellate authority was
 dismissed vide order dated l8.ll.2003.

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 4. The petitioner again approached the tribunal
 by filing Original Application No. 393 of 2004.
 The OA was dismissed in limine by the tribunal
 observing as under:

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 "the question whether the alleged
 misconduct had been established or not
 cannot be raked up again as the same
 had already been settled on the earlier
 occasion by the tribunal. The
 respondents were required to reconsider
 the quantum of punishment alone.
 Through Exhibit A dated l2.9.2003,
 respondents have reconsidered and
 awarded a lower penalty to the
 applicant as per the directions of this
 court. They have not committed any
 irregularity in this. The ratio of the
 case of Ashok Ganpatrao Lacharwar would
 not be applicable to the present case

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 as the previous orders of this tribunal
 dated 7.8.2003 were not challenged by

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 any one and have become final. Having
 regard to the discussions made above,
 we do not find any infirmity in the
 impugned orders. This OA is dismissed
 in limine".

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 5. Ms Tendulkar, learned counsel appearing for
 the petitioner submitted that once intimation
 was given by the DRI Mumbai about the detention
 and suspension order came to be issued question
 of further intimating the same did not arise.
 She submitted that the petitioner was arrested
 on 6.6.l999 and released on bail on 22.6.l999
 and on the next day i.e. 23.6.l999 the
 petitioner attended the office and an
 explanation to this effect was submitted to the
 respondents. Therefore she submitted that the
 order of the respondents holding thepetitioner
 guilty of violation of l0(2) of the CCS Rules is
 totally arbitrary and perverse. She submitted
 that a similar case of Ashok Ganpatrao Lacharwar
 from the very department was considered by the
 tribunal in Original Application No. 506 of
 2002 and the tribunal was pleased to hold that

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 the failure of the official to inform the office
 promptly cannot be held to be a case of
 misconduct and no charge of failure to maintain
 absolute integrity can be invoked against him.
 She also pointed out that a writ petition being
 Writ Petition No.l902 of 2003 filed by the
 department against the order of the tribunal in
 Lacharwar’s case was dismissed by the Division
 Bench of this court vide order dated 29.8.2003.

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 6. In reply, Mrs Masurkar, learned counsel
 appearing for the respondents submitted that the
 petitioner was arrested by the DRI in connection
 with smuggling of watches and the custom
 authority has imposed a penalty of Rs.50,000
 which came to be modified by the CEGAT to
 Rs.5000 and the petitioner has paid the penalty
 of Rs.5000. She submitted that it is incumbent
 upon the government servant who is arrested to
 intimate the fact of his arrest and the
 circumstances connected to it to the superior
 official promptly. Since the petitioner in the
 present case failed to intimate the fact of his
 arrest to his superiors promptly, which amounted
 to suppression of material information, which
 itself rendered him for disciplinary action on

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 the ground of misconduct and for which he has
 been held guilty by the Enquiry Officer. She
 submitted that the misconduct alleged against
 the petitioner was serious but on the direction
 of the tribunal punishment has been reduced i.e.
 reduction in the rank for the period of 5 years
 and therefore no interference is warranted in
 exercise of power under Article 226 of the
 Constitution.

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 7. We have considered the submissions advanced
 by the learned counsel appearing for the parties
 . We have also perused the record of the case.
 In the instant case the only charge against the
 petitioner was failure to maintain absolute
 integrity in contravention of provisions of Rule
 3(l)(i) of the CCS(Conduct)Rules, l964 for the
 reason that the petitioner failed to intimate
 the fact of his arrest and the circumstances
 connected to it to the superior official
 promptly. It is an admitted position that the
 petitioner’s arrest was known to the department
 and the department as a matter of fact placed
 the petitioner under deemed suspension with

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 effect from 6.6.l999. The petitioner was
 released on bail on 22.6.l999 and immediately on

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 the next day i.e 23.6.l999 he attended the
 office and his statement was recorded. He
 disclosed in his statement that he was detained
 in custody from 6.6.l999 till 22.6.l999. We do
 not see any malafides on the part of the
 petitioner or any suppression of fact by him.
 The fact of arrest by DRI and detention in
 police custody was made known to the authorities
 by DRI’s letter dated 8.6.l999. In any event it
 was disclosed to the authorities by the
 petitioner himself upon his release from the
 police custody. Thus the act of the petitioner
 cannot be said to be a misconduct. The facts of
 the present case are identical to the case of
 Lacharwar and we see no reason why same reliefs
 should not be granted to the petitioner.

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 8. Mrs Masurkar, has vehemently contended that
 the petitioner was caught red handed by the DRI
 in connection with the smuggling of watches
 worth Rs.l.5 lacs and the custom authority has
 imposed a penalty of Rs.5,000 which is paid by
 the petitioner and therefore the case of
 Lacharwar cannot be compared with the
 petitioner. We are unable to accept this
 submission of the learned counsel. The charge

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 against the petitioner was not based on the
 order of the CEGAT but the only charge against
 him was that he suppressed the fact of his
 arrest from his superiors.Therefore the fact
 that a penalty was imposed on the petitioner by
 CEGAT is really not relevant for the purpose of
 this petition. Mrs Masurkar also submitted that
 the petitioner was promoted as Head Mail Peon
 only on adhoc basis as per the orders on the
 subject and posting of MG MMT on MMS Trips is
 required to be done from among the junior most
 TBOP Mailmen in the reverse order i.e. junior
 to senior provided the official is otherwise fit
 to work as MG MMT on MMT trips and no additional
 monetary benefit is admissible in this revised
 arrangement. It is not necessary for us to
 express any opinion on this aspect of the matter
 and the respondents are free to take action in
 accordance with law in that regard.

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 9. In the result petition succeeds. The order
 of the tribunal dated 7.8.2000 as well as the
 order of punishment imposed on the petitioner
 dated l2.9.2003 are quashed and set aside. Rule
 is made absolute accordingly with no order as to
 costs.

Rajendra M.Chendekar v. the Union of India and Anr.

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Rajendra M.Chendekar v. the Union of India and Anr.

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