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2024 DIGILAW 1330 (AP)

Rajnish Kumar Rai v. Union Of India

2024-09-20

NYAPATHY VIJAY, RAVI NATH TILHARI

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JUDGMENT : (Ravi Nath Tilhari, J.) : Heard Sri I. H. Syed, learned Senior Counsel, assisted by Sri Malireddy Gowtham, learned counsel for the petitioner and the learned Additional Solicitor General of India, assisted by Sri Josyula Bhaskara Rao, learned counsel for the respondents, through virtual mode. 2. This Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner, challenging the order dated 20.03.2024 in O.A.No.662 of 2023, which has been dismissed by the Central Administrative Tribunal, Hyderabad Bench (‘Central Administrative Tribunal’ in short), as not maintainable. 3. The following is the prayer made in the writ petition: “…..to issue a writ or order or direction in the nature of Writ of Certiorari, to quash and set aside the daily Order dated 20.03.2024 (published a few days after the hearing on 20.03.2024 and the reasoned Order dated 20.03.2024 published on 22.04.2024 and to declare that O.A.No 662 of 2023 is maintainable and that the Ld. Tribunal has jurisdiction to adjudicate it. The petitioner further prays that O.A. No 662 of 2023 be restored and the Ld. Tribunal be directed to decide it within six months from the disposal of this petition The petitioner also prays that the disciplinary proceedings initiated against him through the Charge-Memo dated 16.02.2023 may kindly be stayed till the final disposal of O.A.No 662 of 2023.” 4. The petitioner’s case is that he is an Indian Police Service Officer of 1992 batch of Gujarat. He was deputed as the Inspector General of Police in the Central Reserved Police Force(CRPF) vide order dated 20.03.2015 of the 1st respondent-Union of India. He joined duties at the Directorate General, CRPF, New Delhi on 29.04.2015 and was subsequently posted as I.G., North Eastern Sector, CRPF, Shillong, where he joined on 06.05.2015 and served in that capacity until 14.06.2017. There was some joint operation involving multiple security forces and there were news of some fake encounters. The petitioner was transferred to I.G, CIAT School, Chittoor, Andhra Pradesh and he relinquished the charge of I.G, NES, Shillong, on 14.06.2017. On 16.06.2017 and 19.06.2017, newspapers reported that the 1st respondent entrusted a preliminary enquiry to Shri Ashok Prasad, IPS (Retired), Advisor to the MHA, to enquire into the role of the petitioner in connection with the procedural aspects of the discrete enquiry conducted by him. On 16.06.2017 and 19.06.2017, newspapers reported that the 1st respondent entrusted a preliminary enquiry to Shri Ashok Prasad, IPS (Retired), Advisor to the MHA, to enquire into the role of the petitioner in connection with the procedural aspects of the discrete enquiry conducted by him. On 23.06.2017, the petitioner submitted a representation to the 2nd respondent concerning the preliminary inquiry regarding the fake encounter, for which there was no response. Hence, the petitioner filed O.A.No.2670 of 2017 before the Principal Bench, Central Administrative Tribunal, New Delhi, challenging his transfer to Chittoor and the institution of preliminary enquiry against him, which was dismissed on 09.08.2017 on the ground that since the petitioner had joined his new post, the grievance regarding his transfer had become infructuous. As no preliminary enquiry was initiated, the Principal Bench did not consider the newspaper reports and as the respondents did not disclose the preliminary enquiry that had been entrusted to Shri Ashok Prasad. The petitioner also filed Review Application No.205 of 2017 in O.A.No.2670 of 2017 but he same was dismissed on 04.10.2017. Aggrieved by the dismissal of O.A.No.2670 of 2017 and R.A.No.205 of 2017 in the said O.A., the petitioner filed W.P(Civil) 10828 of 2017 before the Delhi High Court. The Delhi High Court directed the respondents to obtain the current status of the Fact Finding Inquiry as the 1st respondent therein admitted that a preliminary enquiry had been instituted against the petitioner. Subsequently the respondents were directed to file an affidavit to that effect. On 21.08.2018, the 1st respondent filed an affidavit stating that the preliminary inquiry against the petitioner had not been finalized and that they would inform the same as soon as the same was finalized. 5. During pendency of the aforesaid writ petition, the petitioner submitted letter to the 1st respondent-Union of India on 23.08.2018, requesting for his voluntary retirement from 30.11.2018 under Rule 16(2) of the All India Services(Death–cum-Retirement Benefits) Rules, 1958 (in short ‘Rules 1958’) as he had completed 50 years of age. The same was rejected on 17.10.2018. The petitioner, however, relinquished the charge of his office w.e.f. 30.11.2018. Subsequently, he filed O.A.No.528 of 2018, on 05.12.2018 before the Central Administrative Tribunal, Ahmadabad Bench, challenging the rejection of his application for voluntary retirement. The same was rejected on 17.10.2018. The petitioner, however, relinquished the charge of his office w.e.f. 30.11.2018. Subsequently, he filed O.A.No.528 of 2018, on 05.12.2018 before the Central Administrative Tribunal, Ahmadabad Bench, challenging the rejection of his application for voluntary retirement. On 17.12.2018, the petitioner was placed under suspension and a Charge Memo dated 14.01.2019 was served for unauthorizedly abdicating his charge as I.G, CIAT, which he challenged by Miscellaneous Applications in O.A.No.528 of 2018. The Tribunal, Ahmadabad Bench, by order dated 21.01.2019, granted a limited relief restraining the respondents from taking a final decision in the disciplinary proceedings till disposal of O.A.No.528 of 2018, with direction that the disciplinary proceedings may continue. Challenging the grant of limited interim relief, the petitioner filed Special Civil Application (SCA) No.5929 of 2019 in the Gujarat High Court, in which by order dated 14.08.2019, all the parties were directed to maintain status quo, which was confirmed till the disposal of the petitions. Consequently, the proceedings in O.A.No.528 of 2018 were also stayed. O.A.No.528 of 2018 and the SCA No.5929 of 2019 are said to be pending. 6. The 1st respondent issued a Show Cause Notice dated 28.12.2021 in respect of the alleged fake encounters of March, 2017. Initially, the petitioner preferred C.M.A.No.9501 of 2022 in W.P(C) No.10828 of 2017, in which by order dated 22.02.2022, the Delhi High Court directed to maintain status quo. But, finally, the writ petition was closed on 24.01.2023, in view of the show cause notice issued on 28.12.2021, however granting liberty to the petitioner to pursue his grievance before the Central Administrative Tribunal. The petitioner then filed O.A.No.65 of 2023 before the Central Administrative Tribunal, Ahmadabad Bench, challenging the preliminary enquiry conducted against him and the show cause notice dated 28.12.2021. The O.A. was dismissed by order dated 16.02.2023 on the ground of lack of territorial jurisdiction. The petitioner’s Review Application No.1 of 2023 was also dismissed on 22.03.2023. The petitioner challenged the said orders before the High Court of Gujarat in a Special Civil Appeal No. 7133 of 2023, which was dismissed by the order dated 01.05.2023. The petitioner then filed S.L.P.No.11134 of 2023, which is pending before the Hon’ble Apex Court. 7. The 1st respondent-Union of India issued a charge memo dated 16.02.2023. Challenging the same, the petitioner filed O.A.No.85 of 2023 in the Central Administrative Tribunal, Ahmadabad Bench. The petitioner then filed S.L.P.No.11134 of 2023, which is pending before the Hon’ble Apex Court. 7. The 1st respondent-Union of India issued a charge memo dated 16.02.2023. Challenging the same, the petitioner filed O.A.No.85 of 2023 in the Central Administrative Tribunal, Ahmadabad Bench. The same was dismissed by order dated 13.04.2023 for lack of territorial jurisdiction. The petitioner has not challenged the order dated 13.04.2023. 8. The petitioner, however, filed another O.A.No.662 of 2023, before the Central Administrative Tribunal, Hyderabad Bench, on 06.11.2023, challenging the same charge memo dated 16.02.2023. The O.A. has been dismissed, by order dated 20.03.2024 which is impugned in the present writ petition. 9. The Central Administrative Tribunal at Hyderabad, observed that at present the petitioner was neither working in the organisation, though it was mentioned in the suspension order/charge memo, nor residing within the jurisdiction of the Central Administrative Tribunal at Hyderabad. The petitioner’s O.A.No.85 of 2023, against the same charge memo was dismissed by the Central Administrative Tribunal at Ahmadabad. The petitioner had challenged the Show Cause Notice dated 28.12.2021 in O.A.No.65 of 2023, which having been dismissed and the writ petition in S.C.A.No.7133 of 2023 also having been dismissed by the Gujarat High Court, the matter was pending in S.L.P.No.11134 of 2023 before the Hon’ble Supreme Court. In view thereof, the petitioner could not have approached the Central Administrative Tribunal at Hyderabad for venting his grievance, afresh. The matter was subjudice before the Hon’ble Supreme Court. The Charge Memo was issued pursuant to the Show Cause Notice dated 28.12.2021. 10. Sri I. H. Syed, learned Senior Counsel, for the petitioner submitted that the O.A.No.65 of 2023 was dismissed for want of territorial jurisdiction, on the ground that the petitioner had not retired from service nor his services were terminated. The Review petition was also dismissed. The O.A.No.662 of 2023 filed by the petitioner before the Tribunal, Hyderabad Bench, could not be dismissed as not maintainable for the reason that the petitioner was treated, in service, and the respondents also considered the petitioner in service and fixed his Head Quarter at Chittoor, Andhra Pradesh, following his suspension. So in view of Rule 6(i) of the Administrative Tribunal (Jurisdictional) Rules, 1987, there was territorial jurisdiction of the Central Administrative Tribunal, Hyderabad Bench, even though Andhra Pradesh may not be the place of petitioner’s residence. So in view of Rule 6(i) of the Administrative Tribunal (Jurisdictional) Rules, 1987, there was territorial jurisdiction of the Central Administrative Tribunal, Hyderabad Bench, even though Andhra Pradesh may not be the place of petitioner’s residence. He submitted that the petitioner would have some remedy against the charge memo, before any of the Benches of the Central Administrative Tribunal and he cannot be made remedy less. 11. No other point was argued. Reliance was also not placed on any judgment, before us. 12. Learned Additional Solicitor General, submitted that there is no illegality in the impugned order of the Central Administrative Tribunal, Hyderabad. The petitioner’s case is that he ceased to be in service in view of his letter of voluntary retirement. The respondents’ case is that the petitioner did not cease to be in service as his application for voluntary retirement was rejected. The issue is pending adjudication in Special Civil Application (SCA) No.5929 of 2019 before the Gujarat High Court and in O.A.No.528 of 2018 before the Central Administrative Tribunal, Ahmedabad. Further, the order of rejection of O.A.No.65 of 2023 by Central Administrative Tribunal, Ahamadabad and its affirmation by the High Court of Gujarat, such matter is pending in the Hon’ble Apex court in S.L.P.No.11134 of 2023. In the S.L.P, the petitioner filed application for interim relief, but no interim relief was granted as on today. He submitted that the Tribunal has rejected O.A. in view of pendency of the proceedings before the Hon’ble Supreme Court with respect to the same subject matter, in which show cause notice dated 28.12.2021 was issued now followed by the charge memo, which is only the next step. He submitted that the petitioner’s contention is that he ceased to be in service and therefore, the matter being subjudice before the Hon’ble Apex Court, the Tribunal at Hyderabad has rightly passed the order. 13. We have considered the aforesaid submissions advanced by the learned counsel for the parties and perused the material on record. 14. O.A.No.65 of 2023 filed by the petitioner was dismissed by the Central Administrative Tribunal at Ahmedabad and the review application No.1 of 2023 was also dismissed. The dismissal was on the ground of lack of territorial jurisdiction. The petitioner in the said O.A. inter alia had set up the case that he retired from service on submission of his application for voluntary retirement with effect from 30.11.2018. The dismissal was on the ground of lack of territorial jurisdiction. The petitioner in the said O.A. inter alia had set up the case that he retired from service on submission of his application for voluntary retirement with effect from 30.11.2018. The said contention was not accepted by the Tribunal and finding that it had no territorial jurisdiction after observing that the petitioner continued in service, the O.A. was dismissed. The High Court of Gujarat also dismissed the Special Civil Appeal No.7133 of 2023. The matter is pending before the Hon’ble Apex Court in SLP (C) No.11134 of 2023. In the said SLP an Order dated 19.05.2023 was passed which is as under: “Issue notice. On the next date of hearing, we shall hear the question of territorial jurisdiction of Central Administrative Tribunal, Ahmedabad, to entertain the petitioner’s application.” 15. The petitioner’s contention therefore in the previous O.As is that the petitioner has retired on 30.11.2018. In OA/21/662/2023 in which the impugned order dated 20.03.2024 has been passed by the Central Administrative Tribunal (CAT) at Hyderabad, as per Ex.P3, the petitioner’s case as set up is the same that, he retired from service on 30.11.2018 i.e., voluntary retirement. Specific ground has been taken at Ground No.5.4 that “….in view of the settled position of law, he has retired on 30.11.2018. Therefore, he cannot be proceeded against…..” Once the petitioner’s constant stand is that he has retired in view of his voluntary retirement notice, on 30.11.2018, which was not accepted by the Tribunal at Ahmedabad, and such matter is pending before the Hon’ble Apex Court in SLP, we are of the view that the jurisdiction of the Tribunal whether at Ahmedabad or at Hyderabad cannot be decided, at this stage, by the Tribunal at Hyderabad. It is dependent upon the determination of the question, whether the petitioner has retired voluntarily, as submitted by him or he still continue in service, which is the contention of the Union of India and its authorities. Any parallel enquiry by any other Court/Tribunal, the matter being pending before the Hon’ble Apex Court, would neither be appropriate nor as per judicial discipline and decorum. If the petitioner had accepted the finding that he continues in service, the matter would have been different. Any parallel enquiry by any other Court/Tribunal, the matter being pending before the Hon’ble Apex Court, would neither be appropriate nor as per judicial discipline and decorum. If the petitioner had accepted the finding that he continues in service, the matter would have been different. In our view, it cannot be that the Central Administrative Tribunal, Hyderabad will have jurisdiction because in the suspension order, the petitioner’s Head Quarter is fixed at Chittoor, but for the disciplinary proceedings the same shall be bad on the ground that the petitioner had retired on 30.11.2018. The petitioner is either in service or not in service. It cannot be both. 16. The contention of the learned Senior Counsel for the petitioner that the petitioner cannot be made remediless, we are not inclined to accept. The reason is that the petitioner is not remediless. The petitioner is in fact availing the remedy, in various proceedings, as is evident in narration of facts supra. At this stage, the question of jurisdiction of the Tribunal is sub judice. So, at present, it is not a case of the petitioner being denied any remedy or the petitioner being rendered remediless. The question is before which Central Administrative Tribunal he will have jurisdiction, for which parallel proceedings are not to be drawn. The applicability of Rule 6 (1) or (2) is also dependent on the determination of such question of fact. In view of the petitioner’s specific pleading in the present OA/21/662/2023, as mentioned above, it would have to be determined, on determination of the question if the petitioner is or is not in service. The matter is pending before the Hon’ble Apex Court. The impugned charge memo is, in continuation of the show cause notice dated 28.12.2021. 17. Consequently, we are of the view that the Tribunal did not act illegally nor committed any apparent error of law in dismissing the O.A, as not maintainable, for the reasons recorded in the order. 18. We are not inclined to interfere with the impugned order of the Central Administrative Tribunal, Hyderabad. 19. Writ Petition is devoid of merit and is dismissed. 20. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed in consequence.