P.R. Sasidharan v. Union of India and Central Administrative Tribunal, Ernakulam Bench

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **MONDAY, THE 12TH DAY OF MARCH 2012/22ND PHALGUNA 1933** ## **WP(C).No. 5011 of 2010 (S)** **-------------------------OA.NO.549/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ---------------------------------** **PETITIONER(S):** - **------------------------** **P.R.SASIDHARAN, SEPOY OF CENTRAL EXCISE, (UNDER SUSPENSION) POOTHARA HOUSE, KALLUMALA BHAGOM, AYMANAM P.O., KOTTAYAM - 15.** **BY SRI.O.V.RADHAKRISHNAN (SR.) ADV. SRI.C.S.GOPALAKRISHNAN NAIR** **RESPONDENT(S):** - **----------------------------** **1. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD,COCHIN - 18.** **2. JOINT COMMISSIONER (P&V), OFFICE OF COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD,COCHIN - 18.** **3. ASSISTANT COMMISSIONER OF CENTRAL EXCISE, KOTTAYAM DIVISION, AMBAKUZHY ARCADE, C.M.S.COLLEGE ROAD, KOTTAYAM- 686 001.** **4. CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CENTRAL REVENUE BUILDINGS, I.S PRESS ROAD, COCHIN - 18.** **5. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI -110 001.** **6. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, INDIRA NAGAR, SASTHA TEMPLE ROAD, KOCHI - 17.** **R1 TO R4 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EXCISE R5 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2012, ALONG WITH WPC.NO. 16343/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts** **WP(C)NO.5011/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**COPY OF THE ORIGINAL APPLICATION NUMBERED AS 549/2009.**| |---|---| |**P2**|**COPY OF THE REPLY STATEMENT OF THE RESPONDENTS**| |**P3**|**COPY OF THE ORDER DATED 29/10/2009 IN O.A.NO.549/2009**| |**P4**|**COPY OF THE REVIEW APPLICATION NO.53/2009**| |**P5**|**COPY OF THE ORDER PASSED ON 5/1/2010 IN R.A.NO.53/2009.**| |**RESPONDENT'S EXHIBITS:**<br>**NIL**|| **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **THOTTATHIL B. RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ---------------------------------------- W.P(C).Nos.5011 & 16343 of 2010 ---------------------------------------Dated this the 12[th] day of March, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan, J. - 1.These two writ petitions filed under Article 227 of the Constitution, one by the employee and the other by the establishment, challenge a decision of the Central Administrative Tribunal, Ernakulam Bench, for short 'CAT'. - 2.The employee, then a sepoy, was remanded on an allegation as to commission of an offence and was in custody from 25.7.1986. On 30.7.1986, in terms of the provisions of Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for short, ‘CCA Rules’, the competent authority passed an order that he is under deemed suspension. He was convicted on 5.2.1994. Following that, the employee was dismissed from service on 8.4.2005, in terms of Rule 19(1) WPC.5011/10 & 16343/10 2 of the CCA Rules. This was done after following the procedure prescribed in the first proviso occurring in that Rule. This is clear from the order by which he was dismissed on the ground of conduct that had led to his conviction on a criminal charge. That conviction was confirmed by the Court of Session. - 3.In exercise of jurisdiction under Section 397 Cr.PC, this Court allowed the revision of the employee and acquitted him on 8.8.2007. Acting on that, the establishment, through the competent authority, passed an order on 7.10.2008, Annexure A7 before the Tribunal. By that, the competent authority set aside the dismissal and directed a further enquiry and directed that the employee shall be deemed to have been placed under suspension with effect from 8.4.2005, the date of the aforenoted dismissal order under Rule 19(1) of the CCA Rules. - 4.The employee challenged the aforesaid order Annexure A7 before CAT contending that he could not have been treated as WPC.5011/10 & 16343/10 3 one who is deemed to have been placed under suspension with effect from 8.4.2005 in terms of Section 10(4) of the CCA Rules. He also pleaded that the rate of subsistence allowance due to him for the period of suspension ought to have been varied from time to time in accordance with the differential escalation in the pay scale that went up with the passage of time, stage by stage. - 5.The Tribunal upheld the employee’s contention regarding subsistence allowance, but negatived his plea as to the applicability of sub rule 4 of Rule 10 of the CCA Rules and deeming him to be on suspension with effect from 8.4.2005, i.e., the date of his dismissal from service following his conviction by the criminal court of first instance. - 6.While the establishment challenges the decision of the Tribunal on the question of subsistence allowance, the WPC.5011/10 & 16343/10 4 employee challenges it regarding the finding on deemed suspension. 7.Heard learned senior counsel on behalf of the employee quite in extenso on different aspects of the matter and the learned standing counsel for CBEC & Customs. 8.Having regard to the aforesaid factual matrix and noticing that the employee before us has already attained the age of 60 years and would have superannuated on 29.2.2012 had he continued in service, we wanted the learned counsel for the establishment to tell us, on instructions, as to what action was taken against him after the so-called order of deemed suspension. It is pointed out that disciplinary proceedings followed, including by issuance of memo of charges and an enquiry in which the employee had participated. It is submitted on behalf of the employee that, there not having been any specific order reinstating him in service, he could not 5 WPC.5011/10 & 16343/10 have been treated as one in service to be proceeded with on account of any alleged ground of commission of any offence. It is also pointed out that ultimately, the attack on the disciplinary proceedings would be that it is without jurisdiction. - 9.As regards the disciplinary proceeding which has now culminated in an order of dismissal at the hands of the appointing authority (disciplinary authority), that is not a matter now within our jurisdiction under Article 226/227 of the Constitution as enunciated by the Apex Court as regards jurisdiction of Tribunals under the Administrative Tribunals Act in **L.Chandrakumar** v. **Union of India** [AIR 1997 SC 1125]. 10.Be that as it may, we need to answer the following issues. - (i) What is the effect of Annexure A7 order dated - 7.10.2008 issued by the Joint Commissioner of the WPC.5011/10 & 16343/10 6 Cochin Commissionerate of Central Excise and Customs? (ii) Could the employee be treated as one liable to be deemed to have been under suspension with effect from 8.4.2005? If not, what if any is the legal effect of the direction at Sl.No.(iii) in Annexure A7 dated 7.10.2008? (iii) Is the finding of the Tribunal on the issue of subsistence allowance justified on facts and in law? 11.At the outset, we may deal with the third among the issues we have noted above. As of now, the fact of the matter remains that the issue appears to be clearly covered by the decision of the Apex Court in **Union of India** v. **R.K.Chopra** (Civil Appeal No.1096/10) wherein the ratio decidendi emerging appears to be that the differential in terms of the escalated pay scales during the currency of the order of suspension would not have WPC.5011/10 & 16343/10 7 any impact on the subsistence allowance to be paid, however that, such issue would be dealt with by the competent authority in the establishment at the closure of proceedings terminating the order of suspension. It may, in some cases, depend upon the final outcome of the disciplinary proceedings also. In our view, the learned Tribunal not having been appraised by the law laid in this regard by the Apex Court, that issue needs to be re-considered by the Tribunal. We hasten to clarify that we have not expressed anything finally on the said issue since by this, we are making an order of remand leaving open all issues on law and facts on assessment of subsistence allowance open for consideration. - 12.Now, as regards issues (i) and (ii), we would proceed to first quote the following from the impugned Annexure A7 order. “NOW, THEREFORE, the undersigned hereby- - i. set aside the said order of dismissal from service; WPC.5011/10 & 16343/10 8 - ii. directs that a further enquiry should beheld under the provisions of the CCS (CCA) Rules, 1965, against Shri.P.R.Sasidharan, on the allegations which led to his dismissal from service. iii. Directs that the said Shri.P.R.Sasidharan shall under Sub- rule (4) of Rule 10 of the CCS(CCA) Rules, 1965, be deemed to have been placed under suspension with effect from 08.04.05, and shall continue to remain under suspension until further orders.” 13.The aforesaid order is dated 7.10.2008. The issuing authority takes note of the fact that the employee was dismissed from service with effect from 8.4.2005 on the ground of conduct which led to his conviction on a criminal charge; the said conviction has been set aside by a competent court of law and the employee has been acquitted of the said charge; in consequence of such acquittal, the competent authority has decided that the said order of dismissal should be set aside; WPC.5011/10 & 16343/10 9 and, on a consideration of the circumstances of the case, the competent authority also decided that a further enquiry could be held under the provisions of the CCS Rules against the employee, on the allegation that led to his dismissal. This means that all relevant factors for taking the decision as contained in Annexure A7 were focused upon by the competent authority and the first among the decisions rendered by the competent authority in the aforesaid order is that the order of dismissal from service is set aside. That is a self working order. The order of dismissal has been set aside thereby on 7.10.2008. The second limb is one whereby further enquiry is found necessary and it is ordered to be held under the provisions of the CCS Rules. This is also within the format of law and is not even under challenge before us. 14.Now, the crucial issue is the effect of clause (iii) of the impugned Annexure A7. It directs the continuance of the employee to be under deemed suspension with effect from 8.4.2005 and that he shall continue under suspension until WPC.5011/10 & 16343/10 10 further orders. As rightly pointed out by the learned senior counsel on behalf of the employee, sub rule (4) of Rule 10 authorises the concept of deemed suspension being employed only in cases where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. When a superior criminal court in exercise of revisional appellate power sets aside an order of conviction or sentence, it does not, in any manner, set side or declare or render void any decision of penalty or dismissal, removal or compulsory retirement. The order passed under Rule 19(1), at the time of its issuance, is one with jurisdiction and there is no provision in the rules which render it void automatically by the setting aside of the conviction and sentence and consequential WPC.5011/10 & 16343/10 11 confirmation of the criminal charge. This means that the consequence of the order of acquittal by the criminal court has to take its course by the competent authority in the establishment issuing a further order nullifying the penalty imposed under rule 19(1). See O.M.No.F.43/57/64-AVD (III) dated 29.11.1966 amended as per O.M.No.371/3/74-AVD (III) dated 19.9.1975, quoted at Sl.No.8 among the Government of India’s instructions as available in Swami’s Compilation of CCS Rules, 29[th] Edition, 2005. The Government categorically says that if an appeal/ revision in a higher court against conviction succeeds and the Government servant is acquitted, the order imposing a penalty on him on the basis of conviction which no longer stands become liable to be set aside. There are two courses open to the establishment. One is to decide whether the acquittal should be challenged in a still higher court (obviously higher criminal court). The second is that despite the acquittal, whether the facts and circumstances of the case are such as to call for a departmental enquiry against the Government servant on the basis of the allegations on which WPC.5011/10 & 16343/10 12 he was previously convicted. In the case in hand, the department never challenged the order of the High Court acquitting the employee. May be under the procedural laws, it would not have been possible except in rare cases for the Government of India to have challenged the order of acquittal. When there is no recourse to a higher court against the order of acquittal and if it is decided that a departmental enquiry may be held, a formal order should be made setting aside the order imposing penalty on the basis of the conviction and ordering such departmental enquiry. These two limbs of the instructions of the Government have been scrupulously followed by the competent authority in clauses (i) and (iii) of the impugned Annexure A7 order. Now, the question is whether such an exercise can also be coupled with a decision to continue the employee under deemed suspension under Rule 10(4). As already noted, the premise of Rule 10(4) is unconnected with the action that would follow under Rule 19(1). Obviously, nothing prevented the competent authority from passing an order of suspension along with the setting WPC.5011/10 & 16343/10 13 aside of the order of dismissal from service. This could have been done under Section 10(1) of the Rules. Essentially, all that was wanted, was to place the employee under suspension pending the enquiry which was now offing. The 4[th] paragraph among the preamble to Annexure A7 clearly expresses the decision of the competent authority that a further enquiry should be held under the provisions of the CCS Rules against the employee. We, therefore, would treat the terms of clause (iii) of Annexure A7 as only a surplusage in as much as the said order of suspension could be treated as one under Section 10 (1) of the CCS Rules, without in any manner impairing the contents of clauses (i) and (ii) of that order and also without taking away the benefit which an employee under suspension would enjoy under Rule 10(1). The order of suspension under Rule 10(1) cannot be deemed to be effective from a previous date. It cannot be retroactive. Every order of suspension under Rule 10(1) would be subjected to review by the competent authority every 90 days. Otherwise, the order of suspension will get automatically invalidated. If a retroactive order of WPC.5011/10 & 16343/10 14 suspension is made to operate from 8.4.2005, we find no jurisdiction to carry out the exercise of review of orders of suspension. At any rate, Annexure A7 has to be taken as a decision by which the order of dismissal of the employee from service on 8.4.2005 stands set aside and direction for an enquiry under the Rules has been taken. It has also to be taken as an order of suspension from service with effect from 7.10.2008, pending an enquiry which is contemplated. This means that from 8.8.2007, the date of acquittal in the criminal case till 7.10.2008, the employee would be eligible for full pay and allowances in terms of the afore-referred Government decisions. He would also be deemed to have rejoined duty on 7.10.2008 and he would be deemed to have been suspended with effect from that date by the operation of the said order dated 7.10.2008. - 15.We gave anxious consideration as to the question whether we could have decided this matter in one go here, now, when the employee has crossed the age of superannuation even if he WPC.5011/10 & 16343/10 15 had continued in service. We could have answered the question of subsistence allowance also. But the order of dismissal was made on 31.1.2012. We are not going to look as to on which date it was served on the employee. But if we are to answer any jurisdictional issue regarding the said disciplinary proceedings; for one thing, we may be going beyond our jurisdiction under Article 226/227 of the Constitution. Secondly, more importantly, we may even be foreclosing the opportunity of the employee for judicial review of the disciplinary proceedings as it now stands before the Tribunal. We may then be forcing him to get confined to the statutory appellate remedy before the appellate authority in the department. In the fitness of things, having regard to the totality of the facts and circumstances, we deem it appropriate to remit the entire matter after noticing the aforesaid facets and laying down the clear interpretation of Annexure A7 order dated 7.10.2008 to be in the manner in which we have stated above. Subject to that, all other issues will stand left open. WPC.5011/10 & 16343/10 16 To enable the aforesaid process, the order of the Tribunal impugned in these writ petitions is set aside to the extent indicated above. The parties are directed to appear before the Tribunal on 14.05.2012. The writ petitions are ordered accordingly. Sd/- **THOTTATHIL B. RADHAKRISHNAN** **Judge** Sd/- **C.T.RAVIKUMAR Judge** kkb.12/3.