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2000 DIGILAW 1012 (PAT)

Mosmat Raj Bansi Devi v. Union Of India

2000-08-18

AFTAB ALAM, RAVI S.DHAVAN

body2000
Judgment 1. This writ petition is filed at the instance of the widowed wife of one Anirudha Ram, a postal employee who was dismissed from service following a disciplinary proceeding on certain charges. She seeks to challenge the order dated September 9, 1999 passed by the Central Administrative Tribunal Patna Bench dismissing O.A.No. 494/94 filed by the deceased employee against the order of his dismissal from service. During the pendency of the case before the tribunal the applicant died and his wife (the present petitioner) got herself substituted in his place to pursue the relief (s). 2. It seems that the aforesaid Anirud-ha Ram (hereinafter referred to as the concerned employee) got carried away by the accidental death of one of his colleagues on 16.2.1987. The concerned employee and a number of others seem to have held the Post Master General responsible for the fatal accident. On the following day (17.2.1987) a number of employees, forming a mob, collected in the premises of the PMG office. The concerned employee was one of them. They went upstairs in the office building and broke open the door to forcibly enter into the room where the Post Master General and the Assistant Post Master General had taken shelter. The concerned employee and others then severely and mercilessly beat up the Post Master General and the Assistant Post Master General. 3. The relevant extract from the charge sheet given to the concerned employee reads as follows: "Then the said Shri A. Ram alongwith others went upstairs at about 12.25 hours leading the mob carrying the dead body of late Shri Paswan to the door of the chamber of Add. P.M.G. The door of the said chamber was pushed and broke open by some persons of the mob. The Addl. P.M.G. and the P.M.G. Patna who were present in the corridor and they were brutally beaten with fists, kicked with feet and dragged by the said Shri Anirudh Ram, the then LSG Supervisor, PT-Dn. alongwith others in a concerted way till the Addl. PMG Shri K.A. Abrol, was pushed to the room of A.D.(P) and PMG Shri M.S. Raghawan to the room of P.A. to the Director (Vigilance) by some officials and officers of the Circle Office and by ASRMs/IRM who engaged themselves in saving the lives of the PMG and the Addl. alongwith others in a concerted way till the Addl. PMG Shri K.A. Abrol, was pushed to the room of A.D.(P) and PMG Shri M.S. Raghawan to the room of P.A. to the Director (Vigilance) by some officials and officers of the Circle Office and by ASRMs/IRM who engaged themselves in saving the lives of the PMG and the Addl. PMG." A departmental enquiry was held to enquire into the charges and initially one J.Thakur, Superintendent (Sorting) Patna, R.M.S. was nominated as the Enquiry Officer. Later, by memo dated 8.9.1988 one M. Sinha posted as Lecturer, PTC. Darbhanga was nominated replacing J.Thakur as the Enquiry Officer in the proceeding against the concerned employee. 4. The concerned employee seems to have employed every trick in the boon to frustrate the enquiry. He first absented himself from the enquiry proceedings and allowed the departmental witnesses to be? examined exparte. Later, he raised objection before the Enquiry Officer regarding those witnesses having been examined behind his back. On the objection raised by the concerned employee witnesses were re-summoned for their cross-examination by the concerned employee but on the date fixed for the purpose a request for adjournment was made on his behalf on the ground that he was not well. The Enquiry Officer then declined to adjourn the proceedings and thus the statements of the departmental witnesses remained on the record without any cross-examination by the concerned employee. 5. He also made a request for being represented by a High Court lawyer and this request was also turned down by the Enquiry Officer. 6. Finally on 27.1.1989 he made an application to the Director of Postal Services, South Bihar Region, Ranchi for changing the Enquiry Officer on the ground of bias. It was stated in that application that the Enquiry Officer (M. Sinha) was directiy subordinate to the Post Master General who was alleged to have been assaulted and for that reason the concerned employee felt that he would not give an objective and impartial report. It is significant to note that the application for changing the Enquiry Officer was made at a belated stage when the enquiry proceedings were already over and the Enquiry Officer was only to submit his report. No action was therefore taken on the request made by the concerned employee. 7. It is significant to note that the application for changing the Enquiry Officer was made at a belated stage when the enquiry proceedings were already over and the Enquiry Officer was only to submit his report. No action was therefore taken on the request made by the concerned employee. 7. The enquiry report was submitted on 30.6.1989 on the basis of which the Director, Postal Services, dismissed the concerned employee from service by his order dated 18.1.1990. 8. In the departmental appeal the order of dismissal passed by the disciplinary authority was set aside on the ground that a copy of the enquiry report was not furnished to the concerned employee and he was not given an opportunity to make a show cause at that stage. The appellate authority remitted the matter to the disciplinary authority to proceed afresh from the stage at which the enquiry report was received by him. 9. On remand a copy of the enquiry report was given to the concerned employee who gave his show cause on 24.5.1991. On a consideration of the show cause submitted by the concerned employee the Director, Postal Services, Ranchi once again passed an order of his dismissal from service on 22.1.1993. The departmental appeal preferred by the concerned employee was, also turned down and the appellate authority, the Post Master General, Ranchi affirmed his dismissal from service by order dated 8.4.1994. 10. The concerned employee then approached the Central Administrative Tribunal in O.A.No. 494/94 seeking to challenge the orders of his dismissal passed by the disciplinary and the appellate authorities. The Tribunal by order dated 9.9.1999 rejected the O.A. and upheld the orders of his dismissal. Aggrieved by the order of the Tribunal the matter has been brought to this court. 11. From the order of the Tribunal we find that before the Tribunal the case was mainly agreed on the question of the validity and propriety of the departmental enquiry. It was contended that the Disciplinary Authority erred in not acceding to the request of the concerned employee for changing the Enquiry Officer and for directing a fresh enquiry and for that reason alone the departmental proceeding had vitiated. The Tribunal rejected the submissions after a detailed consideration as appearing from paragraphs 7 to 10 of the impugned order. It was contended that the Disciplinary Authority erred in not acceding to the request of the concerned employee for changing the Enquiry Officer and for directing a fresh enquiry and for that reason alone the departmental proceeding had vitiated. The Tribunal rejected the submissions after a detailed consideration as appearing from paragraphs 7 to 10 of the impugned order. The Tribunal has found and held that the request for changing the Enquiry Officer was made after the enquiry proceedings were over and further that the concerned employee failed to substantiate the plea that M.Sinha, the Enquiry Officer was directly subordinate to the officer who was alleged to have been assaulted. 12. It was secondly contended before the Tribunal that the concerned employee was denied opportunity to cross-examine the departmental witnesses and he was not allowed to be represented by a lawyer practising at the High Court. The Tribunal has rejected these submissions after due consideration in paragraphs 13 and 14 of the impugned order. 13. It was next argued before the Tribunal that the findings in the enquiry report were unsustainable in the absence of any documentary evidence. This plea too was rejected by the Tribunal. 14. It was lastly contended before the Tribunal that having regard to the facts and circumstances of the case the punishment of dismissal was disproportionately severe. The Tribunal disagreed pointing out that whatever be the fancied provocation the assault on the Post Master General and the Assistant Post Master General was an uncondonable act. 15. On the aforesaid points agitated before the Tribunal, we are fully satisfied that the Tribunal took the correct view and the order of the Tribunal so far as it turns down the aforesaid pleas made on behalf of the concerned employee does not warrant any interference by this Court. 16. At this stage, it is necessary to take into consideration another point which was evidently not argued before the Tribunal. 17. Mr. Shyama Prasad Mukherjee, learned Sr. Counsel appearing in support of this writ petition pointed out that the incident of assault on the Post Master General and the Assistant Post Master General on 17.2.1987 had also given rise to a criminal case in which the concerned employee and a number of other employees were made accused. 17. Mr. Shyama Prasad Mukherjee, learned Sr. Counsel appearing in support of this writ petition pointed out that the incident of assault on the Post Master General and the Assistant Post Master General on 17.2.1987 had also given rise to a criminal case in which the concerned employee and a number of other employees were made accused. The Police after investigation submitted charge sheet on the basis of which 14 employees of the Postal department including Anirudha Ram, the concerned employee were put up on trial before the Judicial Magistrate 1st Class, Patna in G.R. Case No. 173 of 87/T.R.No. 406/92. A copy of the judgment and order dated 7.8.1992 passed in the criminal case is enclosed as Annexure-15 to the writ petition. From that judgment it appears that all the accused, with the exception of Shyam Nandan Prasad and Surya Nath Singh, were convicted under sections 147, 323, 448 and 353 of the Penal Code. The relevant portion from the trial court judgment is reproduced below: "In view of the materials available on record I find and hold that the prosecution has been able to bring home the charges against the accused persons under sections 147, 323, 448 and 353 of the Penal Code beyond all reasonable doubts." Having thus convicted the accused including the concerned employee the trial court proceeded to hear the case on the question of sentence and having regard to the fact that the accused had no previous conviction and they were all government employees and further having regard to the facts and circumstances of the case the trial court did not pass an order of substantive sentence and directed the convicts to be released under section 3 of the Probation of Offenders Act after giving them due admonition. 18. Mr. Mukherjee submitted that the concerned employee having been released under section 3 became entitled to the protection under section 12 of the Act which is as under: "12. Removal of disqualification attaching to convictionNotwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section, is subsequently sentenced for the original offence." 19. We are unable to accept the submission and in our view section 12 of the Probation of Offenders Act has no application to the facts of this case. The question of application of section 12 of the Act would arise only in a case where an employee is dismissed from service solely on the ground of his conviction by a criminal court. Under rule 55 of the Civil Services (Classification Control and Appeal) Rules an employee may be dismissed from service on the sole ground of his conviction on a criminal charge. In such cases of dismissal the question of sustaining the dismissal order may arise where the conviction is later set aside by a superior court or where the trial court releases the accused under section 3 of the Probation of Offenders Act even after his conviction. But in a case like the present one where the dismissal from service is not on the ground of conviction in a criminal court but on the basis of a disciplinary proceeding in which the charges, formally served upon the employee were fully established, there would be no question of any application of section 12 of the Probation of Offenders Act. In a case like the present one where the order of dismissal is based on a disciplinary proceeding, though on the same charges, held separately from and independently of the criminal trial there is no question of application of section 12 of the Probation of Offenders Act. 20. Mr. Mukherjee in support of his submission also relied upon a decision of the Supreme Court in Capt. ML Paul Anthony V/s. Bharat Gold Mines Ltd. and another, 1999 AIR SCW 1098. The reliance placed on this decision appears to be misconceived inasmuch as in the reported decision the employee in question had got an acquittal from the criminal court before whom the witnesses examined on behalf of the prosecution were the same as before the departmental enquiry. In the case in hand the trial court had found that the charges against the concerned employee were established beyond all reasonable doubts. 21. Mr. Mukherjee then seemed to suggest that having regard to the attendant facts and circumstances the concerned employee might even be justified in assaulting the superior officer. We have noted the submission as it was made at the bar but we have no hesitation in rejecting it out of hands. 22. 21. Mr. Mukherjee then seemed to suggest that having regard to the attendant facts and circumstances the concerned employee might even be justified in assaulting the superior officer. We have noted the submission as it was made at the bar but we have no hesitation in rejecting it out of hands. 22. Mr. Mukherjee next submitted that the departmental enquiry was vitiated for denying the petitioner the assistance of the High Court lawyer and relied upon a decision of the Supreme Court in the Board of Trustees of Port of Bombay V/s. Dilip Kumar Raghvendra Nath Nandkarni, A.I.R. 1983 SC 109. This decision too does not seem to have any application to the facts of this case as there is nothing to suggest that the department in this case was being represented by a legally trained person. 23. No other submission was made on behalf of the petitioner. 24. On the basis of the discussions made above, we find no merit in this writ petition. It is accordingly dismissed.