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2010 DIGILAW 221 (ORI)

UNION OF INDIA (UOI) v. MEGHANAD NAYAK

2010-03-26

B.K.PATEL, L.MOHAPATRA

body2010
JUDGMENT : L. Mohapatra, J. - This writ application is directed against the order of the Central Administrative Tribunal, Cuttack Bench, Cuttack dated 17.4.2007 passed in O.A. No. 491 of 2006. 2. The opposite party was working as a Senior Accountant in the office of the Principal Accountant General (A & E) of Orissa at Bhubaneswar. A case u/s 5 of the Prevention of Corruption Act, 1947 was registered against him in the court of the Special Judge, Bhubaneswar on allegation of being in possession of assets disproportionate to his known source of income. Simultaneously a Departmental Proceeding on allegation of acquisition of properties without permission was also initiated. Another Departmental Proceeding was also initiated on the allegation of subletting the Government quarter allotted in his favour to an outsider without permission of the competent authority. When the Departmental Proceeding initiated on the allegation of acquisition of properties without permission reached the final stage, the opposite party approached the Tribunal in O.A. No. 97 of 1990 to stay the said proceeding on the ground that the charges in the criminal proceeding as well as in the said Departmental Proceeding being the same, the further proceeding in the Departmental enquiry should be stayed till conclusion of the criminal case. In the said Original Application the Tribunal also directed the Department not to pass any final order in the Disciplinary Proceeding till disposal of the criminal trial pending in the court of the Special Judge, Bhubaneswar. The criminal case initiated against the opposite party ended in conviction with imposition of sentence of rigorous imprisonment of two years and fine of Rs. 1,00,000/-. Challenging the said order of conviction and sentence, the opposite party preferred Criminal Appeal No. 302 of 1995 before this Court. By order dated 28.11.1995 in Misc. Case Nos. 391 and 392 of 1995, realization of fine and operation of the judgment of conviction was stayed by this Court. In 2001, when the Departmental Authority served a copy of the enquiry report drawn in the Disciplinary Proceeding asking the opposite party to furnish his written statement of defence, he again approached the Tribunal in O.A. No. 202 of 2001 on the ground that an appeal having been filed against the order of conviction and sentence, the Departmental Proceeding should not also proceed till disposal of the appeal. The said Original Application was disposed of with an observation that because of the interim order dated 28.11.1995 passed by this Court in the aforesaid Criminal Appeal, the hands of the Department have been bound down till disposal of the appeal or till the interim orders are modified. Thereafter an application was filed before this Court in the aforesaid Criminal Appeal for vacating the interim order dated 28.11.1995. The interim order was vacated on the basis of such petition filed on behalf of the Department. After the interim order was vacated, based on the conviction of the opposite party by the Special Judge, Bhubaneswar in the said criminal case, the Disciplinary Authority imposed the punishment of dismissal from service. Challenging the said order of dismissal, the opposite party preferred an appeal. When the appeal was not disposed of within a period of three and half months, the opposite party again approached the Tribunal in O.A. No. 651 of 2004 praying for quashing the order of dismissal on the ground that the said order has been passed in violation of the principles of natural justice and proviso to Rule 19 of the CCS (CCA) Rules, 1965. The said Original Application was disposed of on 8.12.2005 with an observation that since the Departmental Appeal is pending, the Appellate Authority has the inherent power to set right the wrong committed by the Disciplinary Authority and if no opportunity was given to the opposite party to have his say in the matter before the impugned order was passed, the Appellate Authority can redress the said aspect of the matter by giving adequate opportunity to the opposite party at his level or by remitting the matter back to the Disciplinary Authority to follow the principle of natural justice. After the said Original Application was disposed of with the above direction, the Appellate Authority remitted the matter back to the Disciplinary Authority for passing fresh orders in terms of the observations made by the Tribunal in the aforesaid Original Application. The Disciplinary Authority vide order dated 31.3.2006 imposed the punishment of removal from service and challenging the said order, the present Original Application was filed alleging non-compliance of Rule 19 of the CCS (CCA) Rules, 1965. 3. The Disciplinary Authority vide order dated 31.3.2006 imposed the punishment of removal from service and challenging the said order, the present Original Application was filed alleging non-compliance of Rule 19 of the CCS (CCA) Rules, 1965. 3. The Tribunal in the impugned order set aside the order of removal from service passed by the Disciplinary Authority and directed the Disciplinary Authority to pass final orders only after giving the Applicant an opportunity to have his say. The Department assailing the said order of the Tribunal has preferred this writ petition. 4. Learned Counsel for the Petitioners assailed the impugned judgment on the ground that proviso to Rule 19 of the CCS (CCA) Rules, 1965 (hereinafter called 'the Rules') provides for giving an opportunity of making representation on the penalty proposed to be imposed before any order is made under the said provision. But such requirement is not mandatory otherwise the term 'may' would not have been inserted into the provision. According to the learned Counsel for the Petitioners, the said provision gives a wider discretion to the Disciplinary Authority to consider as to whether an opportunity for making a representation before imposing penalty is necessary or not. The provision not being mandatory, there has been no illegality in passing the order of punishment by the Disciplinary Authority without giving an opportunity to the opposite party to represent against the proposed punishment. Considering the circumstances of the present case, the Disciplinary Authority having taken a decision to impose the punishment, there was no reason for the Tribunal to set aside the order of punishment. 5. Shri Kanungo, the learned Counsel appearing for the opposite party submitted that the word, 'may' appearing in the said Rule has to be read as 'shall' and, therefore, this mandatory provision having not been complied with by the Disciplinary Authority before imposition of the penalty, the same was rightly set aside by the Tribunal 6. The sole question for determination before this Court is as to whether the proviso to Sub-rule (iii) of Rule 19 of the aforesaid Rules is mandatory or directory. For convenience, the entire Rule is quoted below: 19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18- i. where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or ii. For convenience, the entire Rule is quoted below: 19. Special procedure in certain cases Notwithstanding anything contained in Rule 14 to Rule 18- i. where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or ii. where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or iii. where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: (Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (i): Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule). On reading of the entire Rule, it appears that where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as he deems fit provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under Clause (i). Prima facie it appears that if a Government servant has been convicted on a criminal charge on ground of conduct which led to his conviction, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit. It is, therefore, clear that once a Government servant is convicted on a criminal charge, the Disciplinary Authority may consider the circumstances of the case and take a decision. But the same has to be subject to the proviso contained in the Rule. Reliance was placed on a decision of the Hon'ble Supreme Court in the case of Union of India and Ors. v. P. Chandra Mouli and Ors. reported in 2004 SCC 530 . But the same has to be subject to the proviso contained in the Rule. Reliance was placed on a decision of the Hon'ble Supreme Court in the case of Union of India and Ors. v. P. Chandra Mouli and Ors. reported in 2004 SCC 530 . In the said reported case, the Respondents therein were convicted and sentenced on a criminal charge. A notice to show cause in terms of proviso to Rule 19 of the aforesaid Rules was issued to them and thereafter the appropriate authority passed orders for compulsory retirement of the Respondents. The question raised before the Hon'ble Supreme Court was as to whether the High Court was justified in setting aside the order of compulsory retirement on the ground of non-compliance of the proviso to Rule 19 of the Rules. The question as to whether the proviso is mandatory or directory was not discussed or decided by the Hon'ble Supreme Court in the said case as notice to represent against the proposed punishment had been given to the delinquent officer therein. In this connection, reference may also be made to a decision of the apex Court in the case of Union of India and Others Vs. Sunil Kumar Sarkar. In the said reported case a General Court Martial under the provisions of the Army Act, 1950 was initiated against the Respondent therein on certain allegations. The Respondent therein was found guilty of some of the charges and was sentenced to undergo R.I. for one year. In the meantime, the Disciplinary Authority acting under Rule 19 of the Central Civil Services (Classification and Control and Appeal) Rules issued a show cause notice calling upon the Respondent to submit his representation as to why suitable orders shall not be passed against him and thereafter the Respondent in the said appeal was put under suspension. In para-8 of the judgment, the Hon'ble Court observed that the very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge and all that a Disciplinary Authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show cause notice and reply to such show cause notice, if any, should be properly consideredbefore making any order under this Rule. It is, therefore, clear that the Hon'ble Supreme Court while deciding thus was of the view that the proviso to Sub-rule (iii) of Rule 19 is mandatory and not directory. 7. Admittedly, in this case the opposite party having not been given an opportunity of representing against the proposed punishment and the mandatory provision contained in Rule 19 of the aforesaid Rules having not been complied with, the Tribunal was justified in setting aside the order of punishment. 8. We, therefore, do not find any reason to interfere with the impugned judgment and accordingly dismiss the writ application. Final Result : Dismissed