S R ARYA Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this application, the applicant has impugned the orders passed by the Disciplinary Authority, i.e., the Presidential order dated 10.6.2002 which has been passed in furtherance of the Hon'ble High Court's order dated 29.8.2001.

(2.) The brief relevant facts of the case are that the applicant, who was a Development Officer in the office of respondents, was prosecuted on a bribery charge and was convicted and sentenced by the Special Court to two years rigourous imprisonment (RI) and a fine of Rs. 2000 vide judgment/order dated 23.12.1995. He had filed Criminal Appeal No. 247/95 against this order and had obtained stay vide order dated 27.12.1995, which had stayed the operation of the sentence. He was given a notice by the respondents and was proceeded against and dismissed from service vide order dated 16.10.2000 passed by the President in exercise of power under Rule 19(1) of CCS (CCA) Rules, 1965, (hereafter referred to as "the Rules"). This order had been challenged by the applicant in an earlier application filed before this Tribunal (O.A.-2316/2000). The Tribunal had accepted the contention of the applicant that because of his obtaining the stay order from the Hon'ble High Court in the Criminal Appeal No. 247/95, the conviction and sentence were non-existent. Accordingly, the O.A. was allowed and he was ordered to be reinstated but deemed to be continued under suspension till disposal of the criminal appeal. Feeling aggrieved by the order of the Tribunal dated 19.3.2001, the respondents/Union of India had filed a writ petition before the Hon'ble High Court on the ground that the interim stay order in the Criminal Appeal will not wipe out the applicant's conviction and operate as a bar against any departmental action against him. The Hon'ble High Court, vide its order dated 29.8.2001 has noted that while the matter was under consideration by them, the applicant's Criminal Appeal No. 247/95 had been disposed of by the competent Appellate Court by order dated 3.8.2001 by affirming his conviction, though reducing his sentence to one of what he had already undergone and fine deposited, i.e., Rs. 2000. It has been noted by the Hon'ble High Court that taking into account the order dated 3.8.2001, the applicant's conviction stood affirmed by that Court and Competent Authority could take fresh appropriate disciplinary action against the applicant, observing also that the Tribunal's order had become of academic interest in the process. In this view of the matter, the Hon'ble High Court passed the following orders:

(3.) LEARNED Counsel for applicant has contended that the representation made by the applicant dated 31.12.2001 runs into several pages, including several annexures containing relevant judgments of the Hon'ble Supreme Court, which, he has contended, has not at all been looked into by the UPSC and the Disciplinary Authority. He has submitted that the UPSC has merely stated that they have considered his previous and similar representation along with all other aspects relevant to the case before tendering their advice dated 17.3.1998 and, therefore, simply came to the conclusion that there was no material change in the case against the applicant and had gone on to tender the advice to dismiss the applicant from service. He has emphatically contended that this is not in order or in accordance with rules or judgments of the Hon'ble Supreme Court. He has relied on the judgment of the Hon'ble Supreme Court in Shankar Dass v. Union of India and Anr., (1986) SCC (Cri) 242=1985(2) SLJ 454 (SC) and has contended that the mere conviction of the applicant in the criminal offence does not necessarily disclose any moral turpitude, which warrants the type of action that the respondents have taken. To the same effect, he has relied on Pawan Kumar v. State of Haryana and Anr., (1996) SCC (Cri) 583=1996(2) SLJ 9 (SC), M/s. Glaxo Laboratories (I) Ltd, v. Presiding Officer, Meerut, AIR 1984 SC 505=1984(1) SLJ 229 (SC) and K.L. Kalra v. The Project and Equipment Corporation of India Ltd., AIR 1984 SC 1361. Mr. S.S. Tiwari, learned Counsel has submitted that under the Rules, i.e., the CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964, copies of which have been annexed to the representation submitted by the applicant dated 31.12.2001, there is no such thing as any misconduct in the facts applicable to the present case, i.e., of a Government servant offering a bribe to another Government servant. He has also contended that the Disciplinary Authority should have examined this issue with a view to see whether there was any moral turpitude, which he contends that there is none. He has also contended that these rules are vague and unclear and do not refer to the type of case which is that of the applicant and which can be stated to involve any moral turpitude. He has also emphasised that the Hon'ble High Court while dealing with the Criminal Appeal No. 247/95 has taken into account the various circumstances, including the fact that the applicant had already undergone the trial for about 15 years and had reduced the sentence only to that already undergone which was present in the earlier penalty imposed. He states that these are all relevant circumstances, which the Disciplinary Authority ought to have applied its mind and having not done so, the impugned order dated 10.6.2002 passed by the Disciplinary Authority should be quashed and set aside. He has submitted that if necessary and if the Tribunal deems it fit, the matter may be remitted to the Disciplinary Authority and the UPSC to freshly and fully apply their mind, as ordered by the Hon'ble High Court in the order dated 29.8,2001, which he has contended, the authorities have not done, and thereafter, pass appropriate orders.