IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.24548 of 2009 1. The Union of India, Rep. By Commissioner of Income Tax-I, Income Tax Department, 63, Race Course Road, Coimbatore 641 018. 2. The Additional Commissioner of Income Tax, Range-I, 63, race Course Road, Coimbatore – 641 018. ..Petitioners Vs. 1. The Central Administrative Tribunal, Rep. By its Registrar, City Civil Court Campus, High Court, Madras. 2. S.Kunjithapatham, Type-3, No.51, Income Tax Quarters, New Siddhapudhur, Coimbatore – 641 044. .. Respondents Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the proceedings of the 1st respondent, Central Administrative Tribunal in O.A.No.807/2008 dated 21.10.2009 and quash the same. For Petitioners : Mr.V.Vijay Shankar For Respondents : Mr.S.Ganesh for R2 R1-Tribunal https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to an order of the Central Administrative Tribunal whereby an application filed by the respondent in C.A.No.807 of 2008 was allowed and an order of suspension challenged therein was set aside. 2. The Court heard the learned counsel for the petitioners and also the respondent. 3. The writ petition has arisen under the following facts and circumstances. The applicant before the Tribunal was working as the Lower Divisional Clerk in the Income Tax Office, Erode. A case came to be registered in C.C.No.8/1998 by the Central Bureau of Investigation and on trial, he was convicted and awarded three years rigorous imprisonment along with fine for the offence under sections 120-B r/w 419, 420, 467 r/w 471 and 468 r/w 471 and under Section 5(1) and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act,1988. He made an application before the trial court and the sentence was suspended the very day. He made an appeal before the High Court in Criminal Appeal No.375 of 2008 wherein the sentence of imprisonment alone was suspended and the said appeal is pending. Pending trial, referred to above, an order of suspension was served upon him on 29.9.2008 under Rule 10 (2) (b) of CCS (CCA) Rules 1965 stating that the applicant was deemed to have been suspended with effect from the date of conviction dated 8.5.2008 and he should continue to remain under suspension until further orders. Following the above suspension order, the applicant/second respondent also dismissed him from service by an order dated 29.12.2008 which was challenged before the first respondent/Appellate Authority and no final order was passed since the verdict of criminal appeal was pending on the file of the High Court. Under such circumstances, aggrieved over the suspension order dated 29.9.2008, the applicant/2nd respondent made an application before the Tribunal. The Tribunal, after giving opportunity to the respondents/ writ petitioners herein, allowed the application by setting aside the suspension order. Hence, this writ petition before this Court. 5. Advancing the arguments on behalf of the petitioners, the learned counsel would submit that in the instant case, it is true that the 2nd respondent was actually suspended by the order dated 29.9.2008 pending the criminal trial in C.C.No.8/1988 registered by the Central Bureau of Investigation. During the relevant period, he was working in the Income Tax Department. The charge that was leveled against him before the criminal law was conspiracy, apart from that, fabrication of accounts and also under the provision of Prevention of https://hcservices.ecourts.gov.in/hcservices/ Corruption Act. The trial Court found him guilty and awarded the punishment of conviction and sentence and only the sentence of imprisonment alone was suspended and not conviction . Equally, when the judgment was appealed, the High Court also suspended the sentence of imprisonment alone. The appeal is yet pending. 6. He would further submit that it is true, originally, the order of suspension was given on 29.9.2008 which was challenged before the Tribunal but at this juncture, it has to be noted that insofar as the reading of Rule 10(2)(b) of C.C.S.(CCA) Rules 1965 would indicate that the suspension has come into operation immediately on conviction and the 48 hours what was mentioned therein is applicable only to a case which is under investigation and not to a case which ended in conviction. Added further learned counsel, in the instant case, not only suspension order was passed as against the respondent on 29.9.2008, Thereafter, he was removed from service by order dated 29.12.2008. The same has also been appealed but the order of suspension was not stayed. It was the case that Rule 19 was already invoked and the verdict of criminal appeal is yet to be pronounced. Under such circumstances, now the 2nd respondent cannot be permitted to say that under Rule 10(2)(b) of CCS(CCA) Rules 1965, he has never undergone any punishment. Therefore, the order of suspension has got to be revoked. The order passed by the Tribunal was erroneous and hence, it has got to be set aside. 7. Contrary to the above contention, the learned counsel pointing to Rule 10(2)(b) of CCS(CCA)Rule 1965 would indicate that this order of suspension has been passed under the above said Rule and the Rule would also make it clear that 48 hours mentioned in the Rule is clearly explained under the explanation therein and in the instant case, he was not under imprisonment, at any point of time. This was adverted to by the Tribunal and hence, it is not a fit case where Rule 10(2)(b) of CCS(CCA) Rules, 1965 could be applied. Apart from that, for the said incident, he has been penalised for many times and that has also been taken note of by the Tribunal and the criminal appeal is yet pending. Insofar as the appeal preferred by the respondent before the Appellate Authority challenging the order of removal from service is concerned, no orders have been made so far. Hence, the order of the Tribunal has got to be sustained. 8. The Court heard the contentions of the rival submission and paid its anxious consideration on the submissions made. 9. It is not in controversy that the criminal case was pending in C.C.No.8 of 2008 as against the 2nd respondent and he was convicted for a period of 3 years under the different provisions of law mentioned above. What was all contended is that the sentence of imprisonment alone was suspended and not the conviction. It is also not in controversy that the 2nd respondent has been suspended under Rule 10(2)(b) of CCS(CCA)Rules on 29.9.2008, pending criminal trial. https://hcservices.ecourts.gov.in/hcservices/ Pending the same, he was actually removed from service. At this juncture, it has to be pointed out that no stay of suspension order was made by the Appellate Forum. On the contrary, he approached the Tribunal to set aside the above order of suspension. It is pertinent to point out that though the suspension order came to be passed under Rule 10(2)(b) of CCS(CCA) Rules, 1965, the order of removal of service has also been passed. The order of removal from service which has not been stayed by the appellate forum must be taken into account. Even if the order of suspension is set aside, the order of dismissal has not been stayed by the appellate forum, therefore, the order of setting aside the suspension order will have no effect. As on date, an appeal filed against the order of removal is pending and the order of suspension was not stayed by the appellate forum. After removal from service, if the original suspension order is now set aside, then all other complications would arise and the 2nd respondent would take it as a lever and would ask for all other benefits thereof. 10. Taking into consideration, the pendency of the appeal pending before the appellate authority in which verdict is to be pronounced and pending criminal appeal wherein conviction and sentenced awarded to the respondent by the trial Court are under challenge, it would not be worth while to set aside the order of suspension. Under such circumstances, the order passed by the Tribunal has got to be set aside, accordingly, set aside. The writ petition is allowed. No costs. Consequently, M.P.No.1 of 2009 is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vsi To 1. The Registrar, Central Administrative Tribunal, City Civil Court Campus, High Court, Madras. 1 cc to Mr.S.Ganesh, Advocate, Sr.No.7295 1 cc to Mr.V.Vijay Shankar, Advocate, Sr.No.7186 W.P.No.24548 of 2009 SAI {CO} TP/11.2.2010. https://hcservices.ecourts.gov.in/hcservices/