Central Administrative TribunalVijay Kumar vs M/O Defence

Excerpt:

Central Administrative Tribunal – Allahabad
Vijay Kumar vs M/O Defence on 31 January, 2020
Bench: Bharat Bhushan
                                                              Reserved


         CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
                           BENCH, ALLAHABAD
                                   .......

                    (This the 31st Day of January, 2020)

        Hon'ble Mr. Justice Bharat Bhushan, Member (Judicial)

                  Original Application No.330/1103/2013

Vijay Kumar son of late Umrao, Resident of Quarter No.85/NI-II, Armapur
Estate, Kanpur.
                                                  ................ Applicant
By Advocate:          Shri Jaswant Singh

                                  Versus

1.    Union of India through Secretary, Ministry of defence, Government
      of India, New Delhi.


2.    Ordnance Factory Board/Appellate Authority through Additional
      Director General Ordnance Factory/Member Appellate Authority,
      10-A, S.K. Bose Road, Kolkata - 70001.


3.    General Manager, Ordnance Factory, Kanpur.


4.    Defence Secretary, Ministry of Defence, Government of India, South
      Block DHQ, New Delhi - 110011.
                                               ..... ............. Respondents
By Advocate:          Ms. Mamta Sharma


                                 ORDER

This Original Application has been filed for following relief(s):-

“i. to issue, a direction in the nature of certiorari quashing the impugned order dated 08.10.2011 passed by respondent No.3 and order dated 23.06.2012 passed by respondent No.2 (Annexure No.1 and 2 to the compilation No.1) ii. to issue, a direction in the nature of mandamus commanding the respondents to grant all consequential benefits treating the period of suspension of the applicant as a period spent on duty and the promotion be restored to the applicant which were cancelled due to the pendency of the criminal case and the applicant be granted arrears of salary with interest at the rate of 12% per annum and all other benefits accrued to the applicant as if the applicant was never placed under suspension.

iii. to issue any other relief which this Hon’ble Court may deem fit and proper under the circumstances of the case.

iv. to award the cost of the application to the applicant.”

2. Brief facts giving rise to the present Original Application are that applicant was serving in the Ordinance Factory, Kanpur being Ticket No.99/Gun Shop-III P. No. 7929. Applicant was detained pursuant to initiation of a criminal proceeding in Criminal Case No.508 of 2007 under Sections 498A, 323, 504, 506 384 and 406 of IPC, Police Station – Fatehgarh, District – Farrukhabad.

3. It appears that a married girl initiated criminal proceedings against her husband Chandra Shekhar and his other relatives including applicant Vijay Kumar under aforesaid sections.

4. Applicant was, therefore, placed under deemed suspension vide order dated 17.03.2008 in accordance with Rule 10(2) of CCS (CC&A) Rules, 1965, hereinafter referred as “CCS Rules”.

5. Subsequently, the suspension of applicant was revoked vide order dated 13.08.2008 and applicant resumed duty on 14.08.2008.

6. The Trial was conducted by Learned Judicial Magistrate City, Farrukhabad who decided the case on 18.06.2011 whereby applicant was acquitted.

7. After the acquittal, Disciplinary Authority (in short “DA”) issued a show cause notice dated 04.08.2011 regarding period of suspension from 05.03.2008 to 13.08.2008.

8. Applicant submitted his explanation in response to show cause notice by way of filing representation dated 19.08.2011.

9. The Competent Authority i.e. respondent No.3 (General Manager, Ordinance Factory, Kanpur) even after acknowledging the acquittal of the Trial Court rejected the representation on 08.10.2011 (Annexure A-1) for payment of salary and other benefits during the suspension period.

10. Strangely, the conclusion of General Manager was that applicant had been acquitted merely because the prosecution had failed to prove her case beyond reasonable doubt. Relevant portion of this order is reproduced as below:-

” ………….

;g fd mDr okn esa ekuuh; U;k;ky; U;kf;d eftLVsªV] Q:[kkckn }kjk Jh fot; dqekj] fV0la0 99@xu “kki&AAA] dks nks’keqDr djkj fn;k x;k gS rFkk fu.kZ; fn0 18-06-2011 dk voyksdu djus ls Li’V gS fd ekuuh; U;k;ky; us Jh fot; dqekj dks lk{; ds vHkko esa nks’keqDr ;ksX; ik;k gS D;ksfda vfHk;kstu i{k vfHk;qDr ds fo:) lansg ls ijs ekeyk fl) djus esa vlQy jgkA ;g fd Jh fot; dqekj] dks lanfHkZr 1@ esa mfYyf[kr dkj.k crkvksa uksfVl tkjh fd;k x;k ftlesa of.kZr izLrko ds laca/k esa fyf[kr izfrosnu] ;fn dksbZ gks nsus dk volj iznku fd;k x;kA Jh fot; dqekj us dkj.k crkvksa uksfVl ds izfrmRrj esa lanfHkZr 2@fyf[kr izfrosnu izLrqr fd;kA vc ;g fd Jh fot; dqekj ds lanfHkZr 2@ izfrosnu ,oa ekeys ds lHkh igyqvksa ij lko/kkuhiqoZd fopkj djus ds mijkUr v/kksgLrk{kjdrkZ bl fu’kd’kZ ij igqaps gS fd Jh fot; dqekj dh fxjQ~rkjh ,oa U;k;ky; ds vkns”k esa mfYyf[kr ^^fd foospuk ds vk/kkj ij vfHk;kstu viuk okn lansg ls ijs lkfcr djus esa vlQy jgk gSA vr% vfHk;qDrx.k vjksfir vijk/k esa nks’keqDr gksus ;ksX; gS^^] ds dkj.k vfHk;qDrx.k vkjksfir vijk/k ls nks’keqDr gq;sA blfy, Jh fot; dqekj dh fuyEcu vof/k fnukad & 05-03-2008 ls 13-08-2008 iwjh rjg vU;k; laxr ugha gSA vr% v/kksgLrk{kjdrkZ ,rn~ }kjk ;g funsf”kr djrs gS fd Jh fot; dqekj] fV-la 99@xu “kki&AAA dh mijksDr fuyEcu vof/k dks dk;Z&vof/k ds :I esa ugha ekuk tk;sxk ,oa mudks dsoy og osru vkSj HkRrs fn;s tkus pkfg, tks mUgs mDr fu;fer fuyEcu vofk ds nkSjku vuqeU; gSA mDr fuyacu vof/k dks lsok esa O;o/kku ugha ekuk tk;sxk] fdUrq mijksDr fuycau vof/k dks mUgs osruo`f)] vodk”k] isa”ku o xzspq,Vh bR;kfn dks dksbZ ykHk ugha feysxkA

———————————–“

11. Feeling aggrieved, the applicant filed a departmental appeal on 06.02.2012 which was also dismissed on 23.06.2012 (Annexure A-

2).

12. The Appellate Authority relied upon the judgment of Apex Court in Krishnakant Raghunath Bibhavnekar vs. State of Maharashtra and others (1997) 3 SCC, 636 for rejection of Appeal.

13. This rejection has brought applicant to this Tribunal.

14. The respondents have filed counter reply saying that the acquittal of applicant was based on the insufficient evidence and that does not necessarily entitle person to back-wages, pensionary benefits and other consequential benefits on his reinstatement.

15. Heard Shri Jaswant Singh, counsel for applicant and Ms. Mamta Sharma, counsel for respondents.

16. Counsel for applicant has submitted that the suspension of applicant was entirely based on initiation of criminal case which ultimately resulted in full acquittal. Therefore, full salary for the period of suspension should be granted. He has also drawn the attention of this Tribunal towards the fact that applicant was not given any benefit of doubt. The acquittal was completely based on insufficient evidence. This should have been taken into consideration by Disciplinary Authority as well as Appellate Authority.

17. On the other hand, counsel for respondents has also relied upon the judgment of Apex Court in Krishnakant Raghunath Bibhavnekar’s case wherein it has been held that acquittal in criminal cases does not necessarily give right to the applicant for back wages.

18. It is apparent that the only reason applicant was put under suspension was initiation of criminal proceedings against applicant in a matrimonial disputes between one Chandar Shekhar and his wife. Apparently, the applicant is somehow related to this Chandra Shekhar.

19. FIR was allegedly given to Police Station but FIR was not recorded therefore, the complainant in criminal case invoked the jurisdiction of Magistrate under Section 156(3) of Cr.P.C. wherein direction was issued by Magistrate to register and investigate the case.

20. After submission of charge sheet, a criminal trial was conducted. Evidence of some witnesses was recorded. The copy of judgment (Annexure A-3) available on record indicates that complainant in that case herself did not support the allegations. Her brother also did not support the allegations. The prosecution completely collapsed during trial. Not even an iota of evidence was found by the Court therefore Magistrate did not have any option but to acquit all accused including applicant Vijay Kumar.

21. Therefore department for Disciplinary Authority to say that accused was acquitted merely because prosecution failed to prove her case and that is why he dismissing his representation is surprising. The Disciplinary Authority should have taken cognizance of the fact that prosecution had completely collapsed during trial.

22. Nothing was found against applicant Vijay Kumar. Not a word was whispered against the applicant therefore to say that he is dismissing his representation on account of failure of prosecution to prove her case is not only strange but surprising.

23. In the appellate order dated 23.06.2012 (Annexure A-2), the same ground was taken for rejection of appeal. Although, the Appellate Authority also relied upon the judgment of Krishnakant Raghunath Bibhavnekar (supra).

24. This Tribunal had perused the judgment of Krishnakant Raghunath Bibhavnekar (supra). In that case an employee was charged, inter alia, under section 409 of IPC apparently involving for financial misdemeanor. In that case, the Apex Court held that acquittal does not necessarily give right for employee for other benefits. The Court held that consequential benefits including back wages etc cannot be matter of course. The Apex Court held thus:-

“……………..

Two courses are open to the disciplinary authority, viz., it may enquire into the misconduct unless, the selfsame conduct was subject of charge and on trial the acquittal was recorded on a positive finding that the accused did not commit the offence at all; but acquittal is not on benefit of doubt given. Appropriate action may be taken thereon.

………………..”

25. The aforesaid observations of Apex Court indicate that even after acquittal, the department has right to conduct departmental proceedings. It may enquire into the misconduct and pass subsequent orders. In the present case, the suspension was entirely based on initiation of criminal case which ultimately collapsed totally.

26. Record reveals that no disciplinary departmental proceedings were even contemplated.

27. Therefore, it is evident that there is no adverse departmental finding. Criminal case had completely collapsed.

28. Once the disqualification due to which applicant was suspended is wiped out due acquittal in a criminal case, he is entitled for back wages and other consequential benefits especially in the light of the facts available in this case. The judgment of criminal court indicate that matrimonial disputes was in fact between one Chandra Shekhar and his wife and apparently applicant Vijay Kumar is somehow related to family of Chandra Shekhar.

29. Department itself revoked the suspension of applicant before the conclusion of trial. The applicant resumed duty on 14.08.2008 while acquittal in criminal case occurred on 18.06.2011.

30. Only dispute is regarding period of suspension between 17.03.2008 to 13.08.2008 and other consequential benefits.

31. Hon’ble Apex Court in Union of India vs. K.V. Janki Raman (1991)4 SCC 109 has recognized the fact that on many occasions frivolous proceedings are instituted at the instance of interested person and an employee is made to suffer both mental agony and privations. In such circumstances, if employee comes out with a clean bill he has to be restored to all benefits from which he has kept away unjustly. In such case normal rule of “no work no pay” is not applicable, inasmuch as, the employee willing to work is kept away from work by authority for no fault of his.

32. In the present case, applicant was not directly involved in any criminal case. The judgment of criminal court does not indicate even an iota of involvement of applicant in any criminal activity. Fact of matter is that criminal court completely exonerated all accused including applicant.

33. It is pertinent to point out that department did not undertake any departmental proceedings against applicant. As of now, record reveals that there was nothing against applicant either departmentally or otherwise subsequent to his acquittal dated 18.06.2011 in criminal trial.

34. This Tribunal has no doubt that applicant was kept away from work for no fault of his. His disqualification (suspension) was completely based on initiation of criminal case which was not his fault. Therefore, he is entitled of full back wages during the period of suspension.

35. Original Application is allowed. The impugned order dated 08.10.2011 passed by respondent No.3 (Annexure A-1) and order dated 23.06.2012 passed by respondent No.2 (Annexure A-2) are quashed. Applicant Vijay Kumar is entitled of full salary during the period of suspension from 17.03.2008 to 13.08.2008 along with all consequential benefits.

36. It is also directed that promotion, if any, be restored to applicant from the date his promotion was due, if he otherwise satisfies the requirement as per rules from the date when a person junior to him was considered and promoted to the next higher post. However, it would be treated as notional promotion and he will not be entitled of promotional salary for the period he did not work on the promotional post. He can only be entitled of promotional salary from the actual date of resumption on the promotional post.

37. Respondents are directed to comply with the directions of this Tribunal within four months after that applicant will be entitled of simple interest of 6% p.a. on his financial dues.

38. There will be no order as to costs.

(Justice Bharat Bhushan) Member (J) Sushil

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