Kashivishwanath Rao Murari Vs the Union of India

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT OR DIRECTION OR ORDER IN THE NATURE OF WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 04.09.2018 PASSED IN OA NO.170/01346/2015 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL BENGALURU BENCH DISMISSING THE APPLICATION FILED BY THE PETITIONER UNDER SECTION 19 OF THE ADMINISTRATIVE TRIBUNAL ACT, 1985 AS PER ANNEXURE-A & ETC.

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THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE S G PANDIT)

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The petitioner, aggrieved by order dated 04.09.2018 in O.A.No.170/01346/2015 passed by the Central Administrative Tribunal Bangalore Bench (for short, ‘the Tribunal’) dismissing the application questioning the order of removal from service bearing No.H/SG.MISC/DAR/SSE/SIG/STR dated 19.09.2001 (Annexure-A6) is before this Court under Article 226 of the

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Constitution of India.

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Brief facts of the case are that, the petitioner joined respondent/railways as ‘Khalasi’ vide order dated 26.01.1999. The petitioner was convicted for the offences punishable under Sections 302 and 498A of IPC in S.C.No.119/2000 by judgment dated 01.02.2001. The said conviction was confirmed by judgment dated 27.07.2004 in Crl.A.No.347/2001 by this Court. In the meanwhile, the petitioner was issued memorandum dated 01.08.2001 (Annexure-A1) under Rule 14(i) of the Railway Servant (Discipline and Appeal) Rules, 1968 (for short, ‘1968 Rules’) proposing to impose penalty of removal and calling explanation from the petitioner on the proposed penalty. At that point of time, petitioner was in judicial custody from 15.01.2001 to 31.01.2001. Thereafter, under impugned order dated 19.09.2001 (Annexure-A6), the respondent/railways imposed penalty of removal from service on the petitioner in exercise of its power under Rule 14(i) of 1968 Rules from the date of conviction. Against the said order of removal, petitioner filed appeal

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and the said appeal was rejected under communication dated 19.12.2013 (Annexure-A7). In the meanwhile, the appeal pending before the Hon’ble Apex Court against the judgment of the Sessions Court as well as the High Court in Crl.A.No.175/2007 was allowed setting aside the judgment and conviction recorded by the Sessions Court which was confirmed by the High Court. The petitioner had preferred revision against the order of penalty of removal and the said revision petition was rejected by communication dated 07.05/15.05.2014, after taking note of the Hon’ble Apex Court’s judgment, setting aside the conviction. Challenging the order of penalty of removal as well as the orders of the Appellate Authority as well as Revisional Authority, petitioner was before the Tribunal in O.A.No.170/01346/2015 and the Tribunal under impugned order dated 04.09.2015 dismissed the said O.A.NO.170/01346/2015 with an observation that even though without sufficient evidence available to the prosecution to ensure a conviction, convinced from the records that a case exist for the departmental authorities

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to pass Annexure-A9 order. Aggrieved by the same, petitioner is before this Court in this writ petition.

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Heard learned counsel Smt.Kavita S. Jadhav for Sri.Arun L. Neelopant for petitioner and learned counsel Sri.M.B.Kanavi for respondents. Perused the entire writ petition records.

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Learned counsel for the petitioner Smt.Kavita S. Jadhav would submit that the Tribunal failed to appreciate the fact of conviction being set aside by the Hon’ble Apex Court and contrary to the judgment of the Hon’ble Apex Court, the Tribunal could not have observed that the case exist for the departmental authorities to pass AnnexureA9, removal order. Learned counsel would submit that the removal is without conducting departmental enquiry. However, removal is in exercise of Rule 14(i) of 1968 Rules. Learned counsel referring to the said Rule submits that notwithstanding the conducting of enquiry where a railway employee suffers conviction on a criminal charge, the Disciplinary Authority could consider the circumstances

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of the case and make such orders thereon as it deems fit. Referring to impugned order of removal, learned counsel for the petitioner would submit that the removal of petitioner from service is only on the ground of conviction and not after finding guilt in the departmental proceedings. As such, she submits that the petitioner would be entitled for reinstatement on conviction being set aside by the Hon’ble Apex Court.

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Learned counsel for the petitioner places

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reliance on the decision of the Hon’ble Apex Court in STATE BANK OF INDIA AND ANOTHER VS. MOHAMMED

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ABDUL RAHIM¹ to contend that on acquittal in criminal proceedings, conviction ceased to exist and the petitioner would be entitled to reinstatement. Thus, she prays for allowing the writ petition.

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Per contra, learned counsel Sri.M.B.Kanavi appearing for the respondent/railways supports the order

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1 (2013) 11 SCC 67

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passed by the Tribunal as well as the order of removal. Learned counsel would submit that the

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respondent/railways in exercise of its power under Rule 14(i) of 1968 Rules, issued penalty of removal as the petitioner was convicted of the offences punishable under Sections 302 and 498A of IPC. He submits that Rule 14(i) of 1968 Rules permits the railway authorities to pass such

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order as it deems fit where the railway servant is convicted on a criminal charge. As the petitioner was convicted for the offences punishable under Sections 302

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and 498A of IPC, the railway authorities have rightly imposed penalty of removal. Thus, he prays for dismissing the writ petition.

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Having heard the learned counsel appearing for the parties and on perusal of the entire writ petition papers, the following questions would arise for consideration:

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i) Whether in the facts of the present case, the petitioner would be entitled for reinstatement on conviction being set aside?

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ii) Whether the Tribunal is justified in dismissing the application?

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The answer to the above questions would be in the Affirmative and Negative respectively for the following reasons:

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It is an admitted fact that the petitioner was convicted for the offences punishable under Sections 302 and 498A of IPC in S.C.No.119/2000 under judgment dated 01.02.2001 passed by the Sessions Court at Dharwad. The said judgment and conviction was affirmed by this Court in Crl.A.No.347/2001 under the judgment dated 27.07.2004. On appeal to the Hon’ble Apex Court by the petitioner, the judgment and conviction dated 01.02.2001 in S.C.NO.119/2000 as well as judgment dated 27.07.2004 in Crl.A.No.347/2001 confirming the conviction was set aside in Crl.A.No.175/2007 dated 03.07.2013. When the conviction is set aside by the Hon’ble Apex Court, conviction stands obliterated. On conviction being set aside, the conviction would not exist in the eye of law. Moreover,

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at paragraph 27 of the judgment, the Hon’ble Apex Court has observed as follows:

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“27. On careful perusal of the materials on record, we are unable to come to the conclusion that the prosecution in this case has established its case beyond reasonable doubt to base a conviction on the appellant. Hence, we are of the opinion that both the courts below have erred in coming to the contra conclusion.”

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The above observation of the Hon’ble Apex Court makes it abundantly clear that the materials on record were not sufficient to convict the petitioner.

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A perusal of the impugned order of penalty of removal dated 19.09.2001 (Annexure-A) makes it abundantly clear that the penalty of removal from service was imposed on the petitioner in exercise of power under Rule 14(i) of 1968 Rules, which permits the Railway Authorities to pass such order as it deems fit on a railway servant who is convicted on a criminal charge. It is also clear that no departmental enquiry is initiated against the petitioner and finding of guilt is recorded before imposing

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penalty of removal. As the penalty of removal is only on the ground of conviction in a criminal case, on conviction being set aside by the Higher Court, the petitioner would be entitled for reinstatement.

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The Hon’ble Apex Court in STATE BANK OF

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INDIA (supra) was considering almost identical fact situation and also the question as to whether on reinstatement of setting aside of conviction, whether such person would be entitled for back wages and at paragraphs 8 and 9 observed as follows:

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“8. Before delving into the contentious issues arising from the arguments advanced, the issue with regard to the applicability of the provisions of the Sastry Award may be dealt with in the first instance. According to us, the said provisions do not have any special significance inasmuch as there can be no doubt on the proposition that on the very same facts that give rise to a criminal offence it is always open to the employer to initiate a departmental proceeding which option the employer may or may not exercise. In the event the employer chooses to initiate a departmental proceeding, it would be open for such an employer to take disciplinary action against the erring employee if the charges levelled are found to be

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substantiated notwithstanding the acquittal of the employee in the criminal case that may have been lodged against him. This is on the principle that standard of proof in a criminal case and a departmental proceeding is different. However, in a case where the employer chooses not to initiate a departmental proceeding and acts only on the basis of the conviction in the criminal prosecution, he would be bound by the final verdict in the same i.e. in case of a reversal. The provisions of the Sastry Award, relied upon on behalf of the respondent, therefore, do not in any manner alter the basic principles surrounding the initiation of a criminal action and a departmental enquiry on the same set of facts and the consequences thereof.

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9. In the present case, the respondent was acquitted by the appellate court. There can be no manner of doubt that the said acquittal would relate back and the initial order of conviction would stand obliterated. On that basis, there can be no manner of doubt that the substratum of the cause that had led to the respondent's dismissal/discharge in the present case had ceased to exist. The same would entitle him to be reinstated in service, an act that has been duly performed by the appellant Bank.

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In the instant case also, the respondent/railways

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having not chosen to initiate the departmental proceedings and penalty of removal was only on the basis of conviction

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which is subsequently set aside by the Higher Court, the

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petitioner would be entitled for reinstatement into service.

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The Revisional Authority in its communication dated 07.05/15.05.2014 (Annexure-A9) after noticing the Hon’ble Apex Court’s judgment whereunder the conviction of the petitioner is set aside, proceeds to dismiss the revision petition placing reliance on the Railway Board Master Circular 67.NoE (D&A)2001/RG6-3 dated 20.10.2002 which would state that, ‘if it is facts, circumstances and the charges in the departmental proceedings are exactly identical to those in the criminal case and the employee is exonerated/acquitted in the criminal case on the merit (without benefit of doubt/or on technical grounds) then the departmental case may be reviewed if that employee concerned makes a representation in this regard.’

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To apply the above said circular, no departmental enquiry is initiated against the petitioner and a finding of guilt recorded in such departmental

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proceedings. The petitioner’s removal is based on the conviction by the Criminal Court. Therefore, the said circular would have no application to the facts of the present case.

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The Tribunal committed grave error in dismissing

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the application, that too, disregarding the Hon’ble Apex Court’s judgment setting aside the conviction of the petitioner. When the Hon’ble Apex Court has set aside the conviction, it is for the Tribunal to follow the dictum or decision of the Hon’ble Apex Court, as it binds the Tribunal under Article 141 of the Constitution of India. Contrary to the judgment setting aside the conviction of the petitioner, the Tribunal is not justified in observing as follows:

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“It is a grievous crime that has been committed, even though without sufficient evidence available to the prosecution to ensure a conviction, but our conscience will not agree as we have gone through the records and are convinced that a case exist for the departmental authorities to pass Annexure-A9 order. Therefore, we confirm Annexure-A9 order and hold that the OA is without merit.”

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The Tribunal exceeded its jurisdiction in making the above observation. Judicial discipline requires following of the decision and judgments of the Higher Forum and the Hon’ble Apex Court. The Tribunal committed further error in observing that the right of the departmental authorities to hold that even in case of an acquittal in a criminal case, it is possible for the departmental authorities to take a different view especially in a case of murder coupled with dowry harassment. The Tribunal failed to appreciate that no departmental enquiry was initiated against the petitioner to record a finding of guilt, but penalty of removal was imposed on the petitioner only on the basis of conviction in criminal proceedings. For the reasons recorded above, the appeal succeeds.

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The petitioner has not worked from the date of his removal from service i.e., 19.09.2001. Since he has not worked, he would not be entitled for full back wages. Granting back wages would depend on the facts and circumstances on each case and it is the discretion of the

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Court. Taking into consideration the overall view of the

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case, we deem it appropriate to grant 25% back wages.

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In the above circumstances, the following:

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ORDER

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a) Writ petition is allowed.

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b) Order dated 04.09.2018 in O.A.No.170/01346/2015 passed by the Central Administrative Tribunal, Bangalore Bench, Bengaluru is set aside.

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c) The order of penalty of removal bearing No.H/SG.MISC/DAR/SSE/SIG/STR dated 19.09.2001 (Annexure-A6), order bearing No.H/P92/V/2013/KVM dated 19.12.2013 as well as the order of revision dated 07.05./15.05.2014 bearing No.H/P92/V/2013/KVR are quashed.

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d) The respondent/Railway Authorities are directed to reinstate the petitioner into service to the post in which he was working as on the date of removal with all consequential benefits.

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