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2014 DIGILAW 859 (ALL)

UNION OF INDIA v. MUNSHI PRASAD

2014-03-13

ASHWANI KUMAR MISHRA, RAJES KUMAR

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JUDGMENT By the Court.—Heard Sri A.K.Gaur, learned counsel for the petitioners and Sri Bhagirathi Tiwari, learned counsel appearing on behalf of the respondents. 2. By means of the present writ petition, the petitioners have challenged the order of Tribunal dated 12.5.2008 passed in Original Application No. 53 of 2006 filed by the respondent No. 1 (hereinafter referred to as “respondent”). 3. Brief facts of the case are that the respondent was appointed as Khalasi in the year 1976 in Railway. It appears that by order dated 17.2.2004 passed in complaint, case No. 664 of 1991 under Section 3 of the Railway Property (Unlawful Possession), Act 1966 (hereinafter referred to “R.P.(U.P.) Act”), the respondent has been held guilty and convicted for two years simple imprisonment and has been awarded a fine of Rs. 2,000/- by Additional Chief Judicial Magistrate, Gorakhpur. After the conviction, a show-cause notice has been issued to the respondent on 3/5.11.2005, under Rule 14 (i) of Railway Servants (Discipline and Appeal) Rules, 1968, proposing to impose the penalty of removal from service. The respondent filed the reply. On consideration of the reply, the order dated 18.1.2006 has been passed whereby the respondent has been removed from service. 4. Perusal of the order dated 18.1.2006 reveals that the respondent has been removed from service merely on the ground that he has been convicted in Crl. Case No. 664 of 1991. In the said order, it has also been observed that the order of trial Court shall remain effective till it is modified. Against the said order, the respondent filed Original Application No. 53 of 2006, which has been allowed by the impugned order. Before the Tribunal, it was pleaded that against the order of conviction, the respondent filed appeal before the appellate Court and has been released on bail. Tribunal allowed the original application with the following observations: “8. Against the said order, the respondent filed Original Application No. 53 of 2006, which has been allowed by the impugned order. Before the Tribunal, it was pleaded that against the order of conviction, the respondent filed appeal before the appellate Court and has been released on bail. Tribunal allowed the original application with the following observations: “8. On behalf of the applicant it is argued that ‘impugned order’ suffers from manifest error in as much as Railway administration appears to be labouring under some mistaken belief that they can pass ‘Order of Removal’ (subject-matter of challenged in this O.A.) on the ground of ‘conviction in criminal case’ even if the order of conviction is under challenge before Appellate Authority and that the applicant was released on bail, the respondents did not invoke their jurisdiction to initiate disciplinary proceedings for about 13-14 years, hence it was not a fit case for passing of removal order mechanically on the ground that there is conviction without applying mind to the relevant facts/circumstances. 9. In the last, learned counsel for the applicant submitted that paragraph No. 3 of Board’s letter dated 6.6.1994 (quoted above) has been misread and respondents have failed to appreciate it in correct perspective. It has been wrongly applied Rule 14(i) (referred to above) and reference to para 3 of said G.O. letter dated 6.6.1994 it also palpably misconceived. The respondents were free to initiate ‘disciplinary proceedings’ as per rule/s applicable to the instant case. Argument is that the department having chosen not to start ‘disciplinary inquiry’ on its own and on the other hand blindly relied upon the existence of order of conviction. In other words, the respondents’ could not act mechanically and pass order of removal, law enjoins upon them to advert to relevant facts and circumstances of the case, which the respondents authorities have miserably failed to appreciate and take into account such relevant circumstance.” 5. It appears that subsequently the respondent has been acquitted by the appellate Court vide order dated 7.3.2009. The copy of the order of appellate Court is annexed alongwith affidavit dated 2.1.2013. Now the respondent has retired on 31.3.2011. 6. It appears that subsequently the respondent has been acquitted by the appellate Court vide order dated 7.3.2009. The copy of the order of appellate Court is annexed alongwith affidavit dated 2.1.2013. Now the respondent has retired on 31.3.2011. 6. Learned counsel for the petitioners submitted that merely because the respondent was released on bail, it does not amount that the conviction has been stayed and unless the conviction is stayed or set aside by the competent authority, the claim of the respondent for reinstatement could not be considered. Tribunal has erred in setting aside the show-cause notice dated 3/5.11.2005 and termination order dated 18.1.2006. He further submitted that the respondent has not been acquitted honourably and has been acquitted by giving benefit of doubt and, therefore, he is not entitled to be reinstated. 7. Learned counsel appearing on behalf of the respondent No. 1 submitted that the respondent has been removed from service merely on the basis that he was convicted by the trial Court. He further submitted that it is not true that the respondent has not been acquitted honourably. The findings recorded in the appellate order reveals that the prosecution failed to establish its case that the goods which alleged to have been found from the possession of the respondent, belong to the Railway. The findings in this regard has been categorically recorded in the appellate order. He submitted that incident relates to the year 1991 and the complaint was also filed in the year 1991. No one has prevented petitioners to initiate disciplinary departmental proceedings but no departmental proceeding has been initiated against the respondent to examine that whether any case has been made out and keeping the respondent in the service was not advisable as well as desirable. He submitted that now the respondent has retired from service, therefore, no departmental proceeding could be initiated against the respondent and, thus, the respondent is entitled for back wages as well as consequential post retiral benefits. 8. We have heard rival submissions and perused the record. 9. The facts are not in dispute. The complaint was filed in the year 1991. It is settled principle of law that both departmental proceedings and criminal proceedings are two independent proceedings and both can continue simultaneously. It appears that initially department has not initiated any departmental proceeding. 8. We have heard rival submissions and perused the record. 9. The facts are not in dispute. The complaint was filed in the year 1991. It is settled principle of law that both departmental proceedings and criminal proceedings are two independent proceedings and both can continue simultaneously. It appears that initially department has not initiated any departmental proceeding. When the respondent was convicted in the year 2004, notice under Rule 14 (i) of Railway Servants (Discipline and Appeal) Rules, 1968 has been issued proposing the punishment of removal from service, on the basis of order of conviction and the respondent has been removed from service. The question of propriety, desirability and advisability have not been examined in the impugned order of removal. However, we find that the order of Tribunal is based on wrong premises. Merely granting of bail does not amount to stay of conviction and, therefore, the termination order merely, on the basis grant of bail, could not be set aside. However, we find that since 1991 no departmental proceeding has been initiated while the petitioners have fullest opportunity to initiate the departmental proceeding. 10. We also find that in the appellate order dated 7.3.2009, the appellate Court has recorded the finding that the prosecution has failed to prove that the alleged goods belong to Railway. The number of discrepancies have been referred in the impugned order. 11. In view of the above discussion, we decline to interfere with the order of Tribunal so far as it setting aside the impugned order dated 3/5.11.2005 and the order of dismissal from service dated 18.1.2006 is concerned, with the modification that in the interest of justice the respondent shall be entitled for back wages only to the extent of fifty percent from the date of termination from the service, till the date of retirement with all consequential post retiral benefits. 12. In the result, the writ petition is partly allowed as stated above.