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2004 DIGILAW 126 (MP)

SHEIKH MOBEEN v. UNION OF INDIA

2004-02-06

KUMAR RAJARATHNAM, S.S.KEMKAR

body2004
ORDER Shantanu Kemkar, J. Through this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order passed in O.A. No. 531/2003 by the Central Administrative Tribunal, Jabalpur (hereinafter referred to as 'the Tribunal') on 12-8-2003 and also the memorandum dated 23-7-2003 issued by the respondents proposing for enhancement of the punishment. This case has got checkered history which we feel necessary to mention in brief. The petitioner was initially appointed as Apprentice w.e.f. 1-7-1965 in the Gun Carriage Factory, Jabalpur and was absorbed as Border 'A' on 1-7-1969. While entering in the service as Apprentice in G.C.F. Jabalpur he declared himself to be of scheduled caste in his attestation form and had submitted a scheduled caste certificate. The petitioner was promoted to Supervisor (Technical) on 3-8-1978, then to the post of Chargeman Grade-II on 1-6-1980 and as Chargeman Grade-I (Technical) on 23-6-1986. He was then further promoted to the post of Assistant Foreman (Technical) w.e.f. 7-5-1993. As per the respondents in 1993 when he was transferred from Gun Carriage Factory, Jabalpur to the Ordnance Factory, Itarsi while scrutiny of his service record it was observed that the petitioner belongs to Muslim religion and as per The Constitution (Scheduled Castes) Order 1950 CO. 19 dated 10-8-1950 of the Constitution (Scheduled Caste) Order 1950, no person who professes a religion different from the Hindu or Sikh religion shall be deemed to be a member of Scheduled Caste. Thus petitioner who was of Muslim Community having entered in service by producing a fake Scheduled Caste certificate the respondents referred the matter to the Disciplinary Authority for taking suitable action in the matter. The disciplinary authority considered the case and ordered to hold enquiry against the petitioner under Rules 14 and 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and issued a charge sheet for gross misconduct of producing fake caste certificate which is a conduct of unbecoming of a government servant vide memo dated 24-10-1996. The petitioner denied the charges and hence enquiry was ordered about the charges framed against him. The petitioner denied the charges and hence enquiry was ordered about the charges framed against him. On enquiry the charges framed against the petitioner were found to be proved and, therefore, the disciplinary authority vide its order dated 15-11-2000 imposed penalty of reduction in rank from Assistant Foreman (Technical) to a lower grade of Chargeman Grade-I (Technical) in the pay scale of 5500-175-9000 until he is found fit by the Competent Authority to be restored to the higher grade of Assistant Foreman. This order was made effective from the date of issue and it was also ordered that his pay in the grade of Chargeman Grade-I shall be fixed at the minimum of the scale. It is pertinent to mention that in the meantime, i.e., during the pendency of enquiry of the aforesaid charges the petitioner filed a petition before the Tribunal vide O.A. No. 638/1997 for quashment of the charge-sheet and the Tribunal vide its ex parte order passed on 4-9-1997 directed to maintain status quo which according to the respondents was not made known to them till the order of penalty was passed. On receipt of the order of imposition of penalty of reduction in rank the petitioner filed a Contempt Petition No. CCP 83/2000 before the Tribunal stating that the respondents have disobeyed the order of the Tribunal passed on 4-9-1997 in O.A. 634/97. As soon as it was brought to the notice of the respondents that there was an order of status quo passed by the Tribunal on 4-9-1997, the respondents had ordered the penalty order dated 15-11-2000 to be kept in abeyance. Thereafter, the Tribunal disposed of O.A. No. 638/1997 by its order dated 6-11-2002 with the following observations: Para 4.4 Now, it is for consideration as to whether the applicant deserves any punishment consequent to the enquiry started with the issue of charge-sheet. If the applicant has benefitted by producing a scheduled caste certificate, even though he was not eligible to the concession of scheduled caste being belonging to a Muslim community, the Department also equally to be blamed for sleeping over for such a period of time. The applicant had joined service in the year 1965 and the charge sheet had been issued only on 24-10-1996. The applicant had joined service in the year 1965 and the charge sheet had been issued only on 24-10-1996. It appears reasonable that the applicant be treated only as a general category candidate after the fact of his wrong claim of being belonging to scheduled caste community came to the notice of the department and the same was communicated to the applicant. Keeping in view this observation, the respondents will be free to complete the departmental proceedings if not already concluded. They may also be at liberty to modify any order passed by them in view of our above observation. In case the applicant is still aggrieved by any such order of the punishment by the respondents, he will be at liberty to agitate the same before a proper forum, if so advised. In compliance of the aforesaid order of the Tribunal the disciplinary authority reconsidered the matter and passed the order on 5-3-2003 imposing the penalty of reduction in rank from Assistant Foreman (Technical) to a lower grade of Chargeman Grade-I (Technical) till such time he is found fit for promotion to the post of Assistant Foreman (Technical). It was further ordered that the pay of the petitioner in the grade of Chargeman Grade-I may be fixed at the scale of pay which he would have drawn had he not been promoted to the post of Assistant Foreman (Technical). The petitioner feeling aggrieved by the aforesaid order dated 5-3-2003 of imposition of penalty filed another petition before the Tribunal which was registered as O.A. No. 184/2003 and which was disposed of by the Tribunal vide its order passed on 26-3-2003 by directing the petitioner to prefer an appeal against the order of penalty passed by the disciplinary authority before the Appellate Authority. The petitioner filed an appeal before the Appellate Authority. The Appellate Authority after considering the case of the petitioner observed that the penalty of reduction in rank imposed by the disciplinary authority on the petitioner is inadequate and not proportionate to the offence committed by him and hence issued a show cause notice vide memorandum dated 5-5-2003 proposing the penalty of removal from service of the petitioner. The Appellate Authority after considering the case of the petitioner observed that the penalty of reduction in rank imposed by the disciplinary authority on the petitioner is inadequate and not proportionate to the offence committed by him and hence issued a show cause notice vide memorandum dated 5-5-2003 proposing the penalty of removal from service of the petitioner. The petitioner again approached the Tribunal challenging the order of penalty of reduction in rank from Assistant Foreman (Technical) to Chargeman Grade-I (Technical) and also prayed for quashment of the show cause notice dated 5-5-2003 issued by the appellate authority proposing enhancement of punishment. The Tribunal vide its order passed in O.A. 301/03 dated 30-6-2003 refused to interfere in the order of punishment but quashed the show cause notice dated 5-5-2003 issued by the appellate authority on the ground that no tentative reason for enhancing the penalty was given by the appellate authority. However, the learned Tribunal had provided an opportunity to the appellate authority to issue fresh show cause notice. In view of the liberty granted by the Tribunal to issue the fresh show cause notice the appellate authority issued memorandum dated 23-7-2003 to the petitioner stating out the reasons for the enhancement of the punishment from reduction in rank to removal from service. Once again the petitioner approached to the Tribunal for quashment of the memorandum dated 23-7-2003 issued by the appellate authority proposing enhancement of the punishment but was unsuccessful. The Tribunal vide its impugned order passed in O.A. No. 531/03 dated 12-8-2003 has held that since the matter is under consideration before the Appellate Authority the judicial review of it is impermissible and the Original Application is not maintainable being premature. The petitioner being aggrieved by this order of the Tribunal has filed this petition. We have heard Shri Rohit Arya, learned Senior Counsel for the petitioner and Shri Anoop Nair, learned Counsel for the respondents and perused the records. There cannot be any doubt that at the stage after the decision of the disciplinary authority when the matter is before the appellate departmental authority about the correctness of the findings recorded by the disciplinary authority and also about the adequacy of the punishment awarded by the disciplinary authority, the Courts are not supposed to interfere but the peculiar facts of this case has compelled us to do so. In this case appellate authority in clear defiance of the order passed by the Tribunal in O.A. No. 638/97 dated 6-11-2002 has issued the show cause notice proposing enhancement of punishment from reduction in rank to removal from service. The order of the Tribunal in O.A. No. 638 of 1997 had become final insofar as the respondents were concerned. It clearly stated that the respondents were sleeping over the matter for a long time and that the petitioner had joined service in the year 1965 and the charge-sheet was issued only in the year 1996. In that view of the matter, the Tribunal pronounced that it is reasonable that the petitioner be treated as a General Category candidate. The Tribunal further held that the respondents will be free to complete the departmental proceedings. All this indicates that the Tribunal intended, taking into account the facts and circumstances of the case that whatever punishment is to be given to the petitioner should be on the basis of the General Category candidate. We are not very sure whether the Tribunal was justified in passing the order, but the fact of the matter remains that this order was not under challenge. Therefore, the respondents are respectfully bound by the order. The petitioner who was held to be guilty of producing a fake caste certificate was initially awarded the punishment of reduction in rank from Assistant Foreman (Technical) to the lower grade of Chargeman Grade-I (Technical) on the pay of the minimum of the scale of Chargeman Grade-I vide order dated 15-11-2000. Thereafter in terms of the order passed by the Tribunal in O.A. No. 638/97 on 6-11-2002 the matter was reconsidered by the disciplinary authority and a fresh order was passed by the Disciplinary Authority on 5-3-2003 by which the petitioner was awarded the punishment of reduction to a lower grade of Chargeman Grade-I (Technical) and his grade was fixed at the stage of scale of pay which he would have drawn had he not been promoted to the post of Assistant Foreman (Technical). In this view of the matter when the disciplinary authority after taking into consideration the observations made by the Tribunal has passed the aforesaid order of reduction in rank on 5-3-2003, the Appellate Authority was only required to consider the appeal of the petitioner. In this view of the matter when the disciplinary authority after taking into consideration the observations made by the Tribunal has passed the aforesaid order of reduction in rank on 5-3-2003, the Appellate Authority was only required to consider the appeal of the petitioner. Instead of this the appellate authority had gone a step ahead and issued a show cause notice proposing enhancement of the punishment may be under the guise of order dated 30-6-2003 passed by the Tribunal, but this was never intended in the order dated 6-11-2002 of the Tribunal. In the aforesaid background we are of the considered view that the appellate authority has committed gross illegality in issuing the memorandum proposing enhancement of the penalty from reduction in rank to removal from service. In that view of the matter the memorandum dated 23-7-2003 issued by the appellate authority is not sustainable and is hereby quashed. Consequently the order of the Tribunal is also quashed. Ordinarily we would have remitted the matter to the appellate authority to reconsider the adequacy of the penalty awarded by the disciplinary authority but on broad consensus arrived at during the course of hearing we feel it appropriate to decide the question of adequacy of penalty. Accordingly considering the facts and circumstances of the case we feel that the penalty awarded by the disciplinary authority vide its order dt. 5-3-2003 to be just and proper penalty and we uphold the same in public interest. This writ petition is accordingly allowed in part with no order as to costs. Final Result : Allowed