Dismissed

Bharat Sanchar Nigam Limited v. T. Balaram

Telangana HC3 Sept 2021WP/19986/2019

Case brief

AI extract

What is this about?

The Telangana High Court dismissed three writ petitions challenging a Central Administrative Tribunal order. The Tribunal had regularized the petitioner's service for pension benefits while denying pay/allowances for the period of suspension due to conviction. The High Court upheld the Tribunal's order, finding no patent illegality or perversity.

What did the court decide?

The writ petitions were dismissed without costs and the Central Administrative Tribunal order was upheld.

Bharat Sanchar Nigam Limited Vs T. Balaram — Pension and Retirement Benefits | Telangana HC (2021)

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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FRIDAY ,THE THIRD DAY OF SEPTEMBER rWO THOUSAND AND TWENTY ONE

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PRESENT

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THE HONOURABLE SRI JUSTICE A,RAJASHEKER REDDY AND

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THE HONOURABLE DR, JUSTICE SHAMEEM AKTHER

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WRIT PETITIO N NOS: 19986 & 20043 OF 2019 &16762OF 2021

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WP NO: 19986 OF 2019

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Between:

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1 . Bharat Sanchar Nigam Limited, rep. by by its Chairman cum Managing^Director, Statesman House,Barakumba Road, New^{Delhi-1 10001}

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The Chief General ltrlanager, Andhra Pradesh^{Telecom Circle (BSNL)} Doorsanchar Bhavan, Nampally station road, Abids, Hyderabad-500001

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The General Manager Telecom^{District, BSNL BSNL, Nizambad,Nizambad} district.

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The Deputy General Manager^(A and^{P), BSNL,O/o General Manager Telecom} District, BSNL, Nizamabad Nizambad, district

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...PETITIONERS

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AND

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1 T. Balaram, S/o. Posetty, Aged about 55^{years, Occ. Section Supervrsor,BSN-L} O/o. Sub divisional Enginee-r^{(Groups), Bodhan Nizambad district,F|/o.H.No.7-} 112, Pothangal Village, Katgir Mandal,^{Nizambad district.}

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2 The Union of lndia, rep by its Secretary ,^{Department of Telecommunications'} Ministry of Comniunicbtiohs and^{lT, 20 Ashoka Road, New Delhi-1}

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...RESPONDENTS

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Petition under Article 226 of the^{constitutionof lndia prayingthat in the} circumstances stated in the^{affidavit filed therewith, the HighCourt may be pleasedto} call for records in respect of the^{order of central administrativetribunal, Hyderabad} bench, Hyderabad dated 1^{5-3-2019in o.A.No.20/29312O14 and issue a writ of} certiorari or any other writ or order^{or direction declaring that the period during which} the 1st respondent was^kept out^{of service on account of convictioncanbe} considered for the^{purposes of computing pensionand service benefits granting the} pension and service benefits and for regularization^{of the service of the common} order dt 15-3-2019 of central^{administrativetribunal,Hyderabadas illegaland} contrary to law.

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lA NO: 1 OF 2019

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Petition under section 151 CPC^{prayingthat in the circumstances stated in the} affidavit filed in support of the^{petition,the Highcourt may be pleasedto staythe} operation of the common order^{dated 5-3-2019in in o.A.No.20129312014on the file} oi the central administrative^{tribunal, Hyderabad Bench, Hyderabad pending disposal} of the above writ^petition.

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Counsel for the Petitioners:^{M/S.T BALAJAYASREE}

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Counsel for the Respondent^{No. 1: SRl. P GlRl KRISHNA}

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Counsel for the Respondent^{No. 2:SRl. B JITHENDER, SC FOR CT}

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WP NO: 20043 OF 2019

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Between:

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'1 . The Bharat Sanchar Nigam Limited, rep. by by its Chairman cum Managing Director, Bharat Sanchal Nigam Limited,stdtesinan House Barakumba Rdad] New Delhi-1 10001

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The Chief General . Manag.er, . Andhra pradesh Telecom Circte (BSNL) Doorsanchar Bhavan, Nampally station road, Abids, Hyderabad-5OOO01

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The General Manager Telecom District, BSNL BSNL Bhavan, Nizambad, Nizambad district.

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The Deputy.pglgral Manager (A and P), BSNL,O/O. Gener.at Manager Tetecom Nizambad, district

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...PETITIONERS

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AND

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T. Balaram, S/o. Posetty, Aged about 56 years, Occ. Section Supervisor, BSNL o/o. Subdivisional Engineei (Groups), Bddhan, Nizambad cisiriit, nyo. n.r.ro. z- 1 12,.Pothangal Village, Katgir Mandai, Nizambad district

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...RESPONDENT

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Petition under Article 226 of the constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High court mly 6e pleased to call for records in respect of the order of central adminijtrative tribunal, Hyderabad bench, Hyderabad dated 15-3-2019 in o.A.No.21l1 B46l2o1s and issue a writ of certiorari or any other writ or order or directron declaring the period during which the respondent was kept out of service on account of conviction can be corisidered for the purposes of computing pension and service benefrts granting the pension and service benefjts and for regularisation of the service of the cornmon order dt 15-32019 of central adminikrative tribunal, Hyderabad as illegal and contrary to law

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lA NO: 1 OF 2019

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Petition under section 1s1 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to stay the operation of the common order datedl5-3-2019 in 0.A.No.21l.182 612ois on the iile of the central administrative tribunal, Hyderabad Bench, Hyderabad pending disposal of the above writ petition.

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Counsel for the Petitioners:MS/. T BALAJAYASREE

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Counsel for lhe Respondent No. 1: SRl.^p GlRl KRISHNA

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WP NO: 16762 OF 2021

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Between:

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T. Balram, S/o Posetty,4gq.q2 y^e.a.q.Occ.,Retd. AOS (G), HR.No.t9BOOS167, O/o. Accounts Officer.(TRA), GVTD, BSNL Nizamao,ja. F/o n.No.1-rrz, Pothangal Village, Kotagiii Mandal, Nizamabad District.

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...PETITIONER

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AND

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t 9,1!pl of lndia, represented by its Secretary, Department of Communications, Mtnlstry of Communications and l.T, 20, Ashok Road, New Delhi .1 10 001.

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Bharat Sanchar Nigam Limited, represented by its Chairman and Manaoino Director, Statesman House, Bharakhamba Robd. New Dell-i - 110 001. " "

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The Chief General Manager, Telangana Telecom Circle, BSNL, Doorsanchar Bhavan, Nampally Station Road, Abids, Hyderabad - 500 0rl1 .

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The General Manager, Telecom District, BSNL, Nizamabac, Nizamabad District.

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5 The T"l;;; Deputy Generat Manager, Dti;;i,"BE Nt:'rfi^y"ra (A bad, and N p), izama BSNL, O/a. b"d Dirt,i"tlnera G I [Manager,

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...RESPONDENTS

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Petition under Articre 226 of the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith,-the High cou,i rlv6.'pGaseo to issue a writ, order or orders, direction or direciions more particurarry one in the nature of writ of fVlandamus_ declaring the order dared isro3l2ois'in- o-.e. No. 211.184612015 passed by the centrar AJministrative Tribunar ar Hya"rau"o i-n' .o r* not granting the pay and alowance to the petitioner during ff e perioo ro, wr,i"n t " Petitioner was kept out of service as iilegar and arbitrary and arso the action of the Respondents in not paying pension and- gratuity and other retirement benefits as illegal,^arbitra ry and against to the principrei or rultuial Justice and viorative of Aft 14 and 16 of constitution of lndia and allow the pay and allowance to tre-petitioner during the period for which the petitioner was kepi out of service ano consequentrv direct the Respondents to pay pension and gratuity and other retirement u."!iii.

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lA NO:'l oF 2021

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Petition under Section i 51 cpc praying that in the circumstances stated in the affidavit filed in support of the petition, ttre Hign court may be preased to direct the Resp-ondents to pay pension and gratuity aid othel" retirement benefits forthwith pending disposal of the above writ petition.

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Counsel for the Petitioner:SRl. p GlRl KRISHNA

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!9r11s1tltor^{the Respondent No. 1: sRr.N. RAJESHWAR} RAo, Assr. solrcrroR GENERAL

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Counsel for the Respondent Nos. 2 to 5: M/S. p. SARADA, SC FOR BSNL

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The Court made the following:

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-ffi

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THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY AND THE HON,BLE DT. JUSTICE SHAMEEM A|KTHER

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WRIT PETITION Nos.19986 & 20043 of 2019 & L6762 ot 2O2L

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COMMON ORDER: (per Hon,bte Dr. lustice Shameem Akther)

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since the facts of the case and the issue invorved in these three writ petitions are simirar and since these three writ petitions emerge out cf same common order, these three writ petitions are taken up together and being disposed of by this common order.

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2' writ Petition Nos.19986 of zorg and 20043 of 2019 are fired by Bharat Sanchar Nigam Limited (for short,.BSNL,), seeking a Writ of certiorari to cail for the records in respect of cornmon order, dated 15.03.2019, passed in O.A/20/0293/ZOt4 and O.A/2L/1846/20t5 respectively, by the central Administrative Triburnal, Hyderabad Bench, Hyderabad (for short, 'the Tribunar'), and decrare the direction of the Tribunal that "the period during which the 1"t respondent was kept out of service on account of his conviction in a criminar 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 r:ontrary to law. W.P.No.16762 of 2O2L is fited by the T.Balaram/applicant, challenging the order, dated 15.03.2019, passed in O.A/27/7846/2015, 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 criminar case and arso the action of BSNL in not paying pension and gratuity and other retirement benefits, as illegal, arbitrary.

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aEr,l e Dt.sA,l w,P Nos,lr9aA/2021 Et bdrth

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Heard Ms. T.Bala Jayasree, learned Standing Counsel for BSNL appearing for the^petitioners in^{W.P.Nos.19986} and 20043 of²⁰¹⁹ and 2'd respondent in^W.P.No.15762 of^2021, Sri^{P.GiriKrishna,} learned counsel for the^{petitioner in W.P.N0.16762of 2021 and 1st} respondent in WP Nos.199B5 and^{20043 of 2019 and perused the} record. The^{parties hereinafter would be referred to, as they are} arrayed before the^Tribunal'

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4, Learned Standing Counsel^{forBSNL appearing forthe} petitioners in W.P.Nos.19986 and²⁰⁰⁴³ of^{2019 and 2nd respondent} in W.P.N0.16762 of 2021^{would submitthat the Tribr'rnal, while} correctly holding that^{the applicantis not entitled for pay and} allowances for the^{period during which he waskept out of serviceon} account of his conviction^{in a criminal case, erred in directingto} the said^period for the PurPose^of reg u larize his service^during The said direction of the^{Tribunal is} pensio n and service benefits. against the law^{laid down} by the Hon'ble Supreme Cou rtⁱⁿ 1 C.R.Radhakrishnan^{Vs' State} of Kera la . The acquittal of the applicant in the^{said criminal case is not an honourableacquittal.He} was acquitted on^{technical grounds, i'e., extendingthe benefitof} doubt. Further,.there^{is no legal bar to initiate disciplinaryinquiry} against the applicant^{in respect of the same charge,whichwas} leveled in a criminal^{case, when the applicant was not acquittedon} merits. The service of the^{applicantcannot be regularized for the} purpose of pension and service benefits^{during the period whichhe} was kept out of service on^{accountof his conviction in a criminal} case.TheTribunalfailedtoappreciatethatafterimpositionof penaltyofdismissalfromserviceintheyear2006,theapplicantdid | (2017) li Suprcmc Court Cascs .i65

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ARRJ A D..SA,J W.P.Nos.l 99A6/2021 & batch

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not challenge the same before any judiciar forum. standard of proof in a criminal case is entirely different from standarcr of proof in an inquiry in disciplinary proceedings. No discriminatio^ was shown by BSNL to the appllcant and ultimately prayed to allow W.p.Nos.19986 & 20043 of 2019 and dismiss W.p.No.1676Z of ZO2t.

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On the other hand, learned counsel For the petitioner in W.P.No.16762 of 2O2l and 1't respondent in W.p,Nos.19986 and 20043 0f 2019 contended that though the Tribunar righfly quashed the charge Memo issued to the appricant and directed to regurarize the service of the applicant for the purpose of pension and service benefits during the period which he was kept ouj: of service on account of his conviction in a criminar case, erred in hording that the applicant is not entitred for pay and a[owances for $re 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 disciprinary enquiry in the year 2015 in respect of the incldent, which allegedly occurred in the year 2003, The applicant cannot be made to face departmental proceedings, indefinitely. The applicant retired from service on 31.03.201g and BSNL has not paid pension and service benefits such as gratuity etc., to the appricant. 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.

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aR&l e Dls&l w,P,Nos,199O6/2 021 & hotch

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In view of the above rival contentions, the point that arises for determination in these three writ^petiti0ns is as follows:

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"Whether the common order, dated 15.03-2olst passed in O.A/20/L293/2OL4 & O.A/2L/1A46/ 2015 with MA 219/2OL9, by the^Central Administrative Tribunal,^{HyderabadBench,} Hyderabad, is legallY sustainable?"

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POINT:-

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The facts of the case,^{in brief, are that whilethe applicant was} workingasaSectionSupervisorinBsNL,atrapwaslaidagainsthim andachargesheetwasfiledontheallegationthathedemanded illegal^{gratification} of^{Rs.1,000/- and accepted the same' In view of} the applicant's^{involvementin a criminalcase relatingto chargesof} corruption,^{he was suspended by the Department on 07'03'2003'} However, the^{suspensionwas revoked on 14'10'2003' The learned} Special Judge^{for CBI Cases,vide judgment dated31'10'2005'} passed in C.C.No.9 of^{2003,convicted the applicantand sentenced} him to undergo^{rigorous imprisonment for two years and to pay fine} of Rs.10,000/-.^{Again,the applicantwas suspendedby 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(forshort,'CCSRules.)Whichrelatestospecialprocedure.and issued notice,^{dated 03.01'2006, to the applicantunder the said} provision'Notsatisfiedwiththeexplanationoftheapplicantagainst the said^{notice, the BSNL dismissed him from service on 21'07'2006'} The applicant^{challengedhis conviction and sentence by filing} Criminal^{Appeal No.1770of 2005beforethe erstwhile High Court of}

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ARR,I & Dr.SA"t ,Y, P, Nos, 1 99a6/2 02 1 & batch

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Andhra Pradesh. The erstwhile High Court of Arrdhra Pradesh reversed the judgment passed by the CBI Court, set aside the conviction and sentence and acquitted the appellant of the charges Ievelled 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.201293/20t4 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 appricant 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 appricant was acquitted in the criminar case. Therefore, the applicant filed O,A.No.2I/t846/2OLS 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 Tribunar, having considered the su bmissions made and the material placed on record, passed the impugned common order, dated 15.03.2019, holding as follows:

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"In tle.result, Charge memo issued against applicant is quashed. Applicant is not enti ed for pay and allowances for the period _during which he was oul of service. For the purpose of pension and service benefits, resportdents are directed to regularize the service of the applicant."

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Aggrieved by the observation made by the Tribunar that the appricant 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 criminar case, the applicant filed W.p.No.16762 of 2021, whereas, aggrieved

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ARR| & D.sa , w.^p No._ 1 sess/zo2 i'sl tto tL h

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by the observation made by the Tribunal that for the purpose of pension and service benefits, the respondents are directed to reguiarize the service of the applicant, the BSNL filed W.p.Nos.19986 and 20043 of 2019.

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8' There cannot be any dispute that there is no regar 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 materiar praced on record revears that the Department imposed penarty of dismissar from service against the applicant by order, dated 2L.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 departnrentar 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

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AR&l^{& Dr'sA} l w^a No.l^{9986/2021& b t!-h}

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employee^{based on his convictionin criminal charge'by dispensing} with the enquiry.^{Thus, the intention of the Departmentappears to} be that it^{wanted to base its decision on the verdict of the CBI Court'} Having chosen^{to act underRule 19 of CCS rules' whichprescribesa} the Department^{again cannot issue a charge-} special Proced^{u re,} memo at a^later stage to the^{applicant proposirlg toinitiate} disciplinary enquiry^{againsthim, particularlyafter 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 delayand} laches.

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9, The learned Standing Counsel for the petitioners, placing reliance on C.R.Radhakrishnan's case supra, woulrJ 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 subsequentry set aside by the High Court and he was acquitted. Since the appellant therein was acquitted, he contended that he is entitred to fuil service benefits under Rule 56 of Kerara service Rures, part I. The Horr,bre supreme Court, while discussing the relevant provisions, i.e., Rule 56(1) & (2) of Kerala service Rures, part I, herd that since the acquittar of the appellant therein was not a honourable acquittal but was only on tienefit of doubt and ultimately negated the craim of Lhe appeilant therein. Rule 56(1)&(2) of Kerara service Rures, part i, rs not akin to

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AR&l & Df;SAJ w. P.Nos.l 99A6/2021 & bo.ch

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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 6a5), but the Tribunal did^not sustain the submissions made on behalf of BSNL.

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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 allowancesfor 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.

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Here, it is apt to state that the Court^{issuinga Writ of Certiorari} acts in exercise of a supervisory^{but not appellate jurisdicti0n' A Writ} of Certiorari will be^issued for^{correctingerrors of jurisdiction, i.e.,} when an inferior Court or Tribunal acts without^{jurisdictionor in} excess of it, or fails to exercise it.^{A Writ of Certiorariwill also be} issued when the subordinate Court or^{Tribunal acts illegallyin 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^{enquireinto 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 omissionor commissionon the} part of the Tribunal in determining the /ls. Further,^{we do not see}

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¶95

ARR,I & Dt..s.4l W.P.Nos.l 9986/2021 & botch

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any perversity/ patent illegality, irrationality in the common order of Tribunal. The relief sought by the Department in \A/.p.Nos.19986 & 20043 of 2019 cannot be granted, so also the reltef sought by the applicant in w.p.No.16762 of zozt. All these writ petitions are devoid of merit and are liable to be dismissed.

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Accordingry, these three writ petitions are dismissed. No costs. Miscellaneous petitions, if any, pending in these three writ petitions, shall stand closed.

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SD/.T.KRISHNA KUMAR ASSISTANT REGISTRAR

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