Dismissed

Dhan Singh Deora v. Union of India and Ors.

Rajasthan HC15 May 2017CW/1016/2017

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed a writ petition challenging the Central Administrative Tribunal's dismissal and review order. The court held that Prasar Bharti had functional control over the petitioner transferred from Doordarshan under the Act, and dismissal remained valid despite the petitioners' criminal conviction being under appeal with bail granted.

What did the court decide?

The writ petition was dismissed; the order passed by the Central Administrative Tribunal was affirmed; the petition to substitute the penalty of dismissal was rejected.

Dhan Singh Deora Vs Union of India and Ors. — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Civil Writ Petition No. 1016 / 2017

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Dhan Singh Deora S/o Late Shri Mohan Lal Deora,, Aged About 46 Years, R/o Imartia Bera, Paota C Road, 7th Gali, Jodhpur

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----Petitioner

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Versus

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Union of India Through Secretary to the Govt. of India, Ministry of Information and Broadcasting,, A Wing, Shastri Bhawan, New Delhi

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Director General, Prasar Bharti, (Broadcasting Corporation of India), Doordarshan, (India Public Service Broadcaster), Doordarshan Bhawan, Copernicus Marg, New Delhi-110001

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The Station Engineer, (DIRECTOR (E),) Prasar Bharti, Broadcasting Corporation of India, (India Public Service Broadcaster) Doordarshan,, High Power Transmitter Masuriya Hills, Jodhpur

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----Respondents

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For Petitioner(s) : Mr. SK Malik

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For Respondent(s) : Mr. BP Bohra

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HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS

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HON'BLE MR. JUSTICE G.R. MOOLCHANDANI

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Judgment

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Per Hon'ble Mr. Justice Gopal Krishan Vyas

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15/05/2017

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The instant writ petition has been filed by the petitioner Dhan Singh Deora against the judgment (Annex.8) dated 3.11.2016 and order (Annex.10) dated 15.12.2016 passed by the learned Central Administrative Tribunal (hereinafter referred to as the learned tribunal for short) whereby not only the learned tribunal dismissed the Original Application filed by the petitioner

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(2 of 10)

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but also dismissed the review petition as filed by the petitioner. In the OA filed by the petitioner the order dated 16.8.2010 was challenged whereby the penalty of dismissal was imposed against him and order dated 1.3.2012 whereby the appeal filed against the order dated 16.8.2010 was also dismissed by the appellate authority.

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As per the facts of the case, the petitioner was initially appointed as Helper on 11.5.1992 at Doordarshan, Nagaur and subsequently, he was transferred to Doordarshan, New Delhi. Again transferred from New Delhi to Jaipur in the year 1995. When petitioner was working at Jaipur Doordarshan on complaint made by the SP CBI, Jaipur on 11.8.1999, an FIR was lodged against the petitioner for committing irregularity and willful malpractices in connection with an examination. The court of CBI held petitioner guilty for the charge levelled against him vide judgment dated 28.3.2009 and passed sentence for offence under Section 120B and 371 IPC for two years RI and for offence under Section 477A IPC and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, for five years respectively and imposed fine of Rs.5,000/-. Being aggrieved and dissatisfied with the aforesaid judgment passed by the CBI Court, the petitioner preferred SB Cr. Appeal No.183/2009 before this Court in which the petitioner was enlarged on bail during pendency of criminal appeal.

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After conviction, a show cause notice dated 18/21.10.2009 under Section 19 of the Central Civil Services (Control, Classification and Appeal) Rules, 1965 (hereinafter referred to as

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(3 of 10)

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the Rules of 1965 for short) was served upon the petitioner. The said show cause notice became subject matter before the learned tribunal in OA No.232/2009 filed by the petitioner and said OA was dismissed being premature vide order dated 16.4.2010 while granting liberty to file representation before the disciplinary authority to raise his all grounds.

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As per petitioner exhaustive representation was submitted by him on 15.5.2010, thereafter, the respondent no.3 vide order dated 16.8.2010 inflicted penalty of removal from service. Being aggrieved and dissatisfied with the said order, the petitioner preferred an appeal provided under the rules, but said appeal was also dismissed by the appellate authority vide order dated 1.3.2012. Against both the orders the petitioner preferred OA before learned Central Administrative Tribunal, Jodhpur on various grounds. The main ground taken by the petitioner in OA that as per rule 20 of the Rules of 1965 the parent department could impose any penalty and not an authority of borrowing department, but penalty has been imposed by the borrowing department, therefore order is totally without jurisdiction. Secondly, it is submitted before the tribunal that impugned order of dismissal has been passed without application of mind as it is based upon conviction of the appellant in criminal case only, without verifying the fact whether the offences for which conviction has been imposed is an offence of moral turpitude or not and prayed before the learned tribunal to quash the order of dismissal.

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A detailed reply was filed by the respondents and after

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(4 of 10)

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hearing finally vide judgment dated 3.11.2016, the learned tribunal dismissed the OA as well as the review petition filed by the petitioner before the learned tribunal vide order dated 15.12.2016.

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Learned counsel for the petitioner vehemently argued that the judgment of the learned tribunal is not sustainable in law because the petitioner was on deputation with the Prasar Bharti and in fact, he was employee of Doordarshan because he was initially appointed on the post of Technician in the Indian Doodarshan Maintenance Center of Doordarshan, Jodhpur and after coming into force Parsar Bhartri, the petitioner is on deputation with Parsar Bharti since 1.4.2000, therefore, as per the judgment of the Hon'ble Supreme Court in the case of Tripta Devi Vs. Satyendra Mishra and Ors, the order of dismissed is without jurisdiction. Learned counsel for the petitioner further argue that power to impose three major penalties, which is compulsory retirement, removal from service and dismissal from service is required to be exercised by the Central Government, but the learned tribunal did not consider the said ground in right perspective, therefore, both the orders of learned tribunal impugned in this writ petition deserves to be quashed.

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It is also submitted that in case of Parsar Bharti & Ors. Vs. Amarjeet Singh & Ors reported in (2007) 9 SCC 539, the CAT clearly took a view that the three major penalties which is compulsory retirement, removal from service and dismissal of service can be imposed by the Central Government. Therefore, whatever order has been passed by the respondent no.3 may

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kindly be quashed.

Learned counsel for the petitioner invited our attention towards the fact that in case of similarly situated employees i.e. in the case of Shashi Kant Agnihotri Vs. UOI & Ors., the learned tribunal allowed the OA and remitted the case and that judgment of learned tribunal was further confirmed by the Division Bench of this Court in DBCWP No.6080/2014, therefore, the judgment impugned in this writ petition deserves to be quashed and set aside. The petitioner was employee of the Central Government because his parent department was Doordarshan having control of Central Government, therefore, obviously he was on deemed deputation with the Parsar Bharti and as per rule 20 of the Rules of 1965 his parent department is competent to impose major penalties against him the learned tribunal dismissed the OA without considering the aforementioned ground. Hence, this writ petition may kindly be allowed and all the orders may kindly be quashed.

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Per contra, learned counsel for the respondents vehemently argued that in view of the judgment in case of Tripta Devi Vs. Satyendra Mishra and in compliance to the order dated 2.2.2007 passed by the Hon'ble Supreme Court the Union Cabinet in its meeting dated 28.1.2009 has approved the draft amendment bill, however, the same came to be passed by the Parliament only on 8.1.2012 and published in the official gazette of India on 9.1.2012 whereas the services of the petitioner were terminated on 18.8.2010, therefore, the amendment has no effect/application in the instant case. Further, it is submitted that the learned tribunal

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(6 of 10)

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while relying upon the judgment of the Hon'ble Supreme Court in the case of Prasar Bharti Vs. Amarjeet Singh & Ors reported in 2007(9) SCC 539 passed the impugned order, therefore, no interference is called for in the impugned judgment. It is also submitted that petitioner was appointed as Technician by the respondent no.3, the Station Engineer. The post of technician has been classified as Group „C,” as per Rule 5 of the Rules of 1965 non gazette/non clerical service and its appointing authority is head of the office. Admittedly, the petitioner committed a serious misconduct while working in the Prasar Bharti and all the employees of Prasar Bharti are government employee on permanent deputation uptill their retirement, because they are not getting any deputation allowance. The disciplinary authority is also having same status as the petitioner was having during the course of employment, so he was competent to take decision under Rule 19 of the Rules of 1965. It is also argued that petitioner is on deemed deputation with Prasar Bharti and the administrative control of Prasar Bharti is with the Central Government and therefore, respondents are competent to take action including the disciplinary actions against the employees of Prasar Bharti because the Station Engineer of HPT is empowered to initiate and impose any penalty prescribed under the CCA Rules.

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Learned counsel for the respondents further submitted that the grounds taken by the petitioner were considered by the learned tribunal and after considering the arguments of the learned counsel for the parties the learned tribunal dismissed the OA and review petition and while following the judgment of the

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Hon'ble Supreme Court in case of Amarjeet Singh (supra).

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After hearing learned counsel for the parties it emerges from the facts that on a complaint, FIR was registered against the petitioner and some other persons by the CBI for malpractices in examination, which was converted to case no.1/2003 by the CBI court at Jodhpur, the CBI court vide judgment dated 18.3.2009 convicted the petitioner for the charges levelled against him and appeal against the said judgment is pending in this court and petitioner is on bail.

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We have considered the argument of the learned counsel for the petitioner that in terms of rule 20 of the Rules of 1965 the authorities of borrowing department of Prasar Bharti cannot initiate disciplinary proceedings against the petitioner nor impose any penalty in pursuance of the said disciplinary proceedings. The aforesaid contention is not acceptable because employees of Doordarshan and Akashvani were enblock transferred to Prasar Bharti on enactement of Act, their deputation is not a normal deputation as envisaged under rule 20 of the Rules of 1965 because for all intents and purposes, once the functions, assets and liabilities and all the employees of Doordarshan and Akashwani have been transferred to Prasar Bharti in terms of Section 12 of the Act. the petitioner cannot be permitted to raise voice that their disciplinary authority would be parent department. The issue of competence of Prasar Bharti came up for consideration before the Hon'ble Supreme Court in the case of Amarjeet Singh (supra) and the Hon'ble Supreme Court after considering the provisions of the Act and the rules, gave following

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verdict, which reads as under:

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“20. The concept of control implies that the controlling officer must be in a position to dominate the affairs of its subordinate. It is unless otherwise defined would be synonymous with superintendence, management or authority to direct, restrict or regulate. It is exercised by a superior authority in exercise of its supervisory power. It may amount to an effective control, which may either be de facto or remote.

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The Corporation has not framed its own rules. In absence of any rules, however, an employer, it is wellknown, would have an inherent power to deal with its employees. In a situation of this nature, we have no doubt that the same would include a power of transfer. It is one thing to say that an employer does not possess of any power to transfer in terms of the extant rules or conditions of service or the nature thereof; but the same does not mean that the employer must have the power to transfer its employees only in terms of a statute.

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Respondents, therefore, in our opinion by reason of their conduct as also that of other players in the field, namely, the Union of India and Corporation must be held to have been deputed in the services of the Corporation. They would, therefore, be governed by the general principles of deputation. For the said purpose they are under the functional control of the Corporation which in the peculiar facts and circumstances of this case, in our opinion, would also imply that the Corporation had a power of transfer.”

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Upon perusal of the aforesaid judgment it is apparent that Hon'ble Supreme Court held that transfer or deputation are under the functional control of the corporation, it is not a simple case of deputation, more so, it is a case of shifting of entire establishment to the Prasar Bharti on enactment of the Act, therefore, there is no force in the contention raised by the petitioner that the parent department is competent to inflict any penalty against him.

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Learned counsel for the petitioner invited our attention towards the judgment of the Hon'ble Supreme Court in the case of State of UP Vs. Arvind Kumar Srivastava & Ors passed in Civil

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(9 of 10)

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Appeal No.9849/2014, decided on 17.10.2014. In our opinion, fact of the said case are not applicable upon the facts of this case.

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We have considered the prayer of the petitioner for quashing the order of dismissal and for reinstatement in service in spite of the fact that he was convicted by the criminal competent court and appeal against the said judgment is pending . In case of Union of India Vs. Ramesh Kumar reported in (1997) SCC 514 while considering the set of rules in para no.6of the judgment, the Hon'ble Supreme Court held that disciplinary authority is empowered to take action against the government servant on the ground of misconduct, which has led to his conviction on a criminal charge under Rule 19 of the CCA Rules, 1965. Para no.6 of the said judgment reads as under:

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“6. A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the Appellate Court the order of dismissal based on conviction stands obliterated and dismissed Govt. servant has to be treated under suspension till disposal of the appeal by the Appellate Court filed by Govt. servant for talking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a component Court of law has not lost its string merely. Because a criminal appeal was filled by the respondent against his conviction and the Appellant Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angles. Under Section 389 of the code of Criminal Procedure, the appellant Court has power to suspend the of sentence and to release an accused on bail. When the appellant Court suspends the execution of sentences, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under section 389 Cr.P.C. an accused avoids

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undergoing sentences pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellant Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court.”

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After considering the fact that petitioner has been convicted

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vide judgment dated 28.3.2009 passed by the CBI Court, Jodhpur and appeal against the said judgment is pending in this Court, we are of the opinion that in view of the judgment in case of Ramesh Kumar (supra) no interference is called for in the judgment impugned passed by the learned Central Administrative Tribunal, Jodhpur so as to accept the prayer of the petitioner to substitute the other penalty, which is provided under the Rules except dismissal.

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In view of the above, this writ petition is hereby dismissed.

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(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J.

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cpgoyal/ps

Dhan Singh Deora v. Union of India and Ors.

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Dhan Singh Deora v. Union of India and Ors.

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