IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9931 of 2011 Sri Krishna Kumar @ Krishna Raut son of Late Hanuman Raut, resident of village –Nayagaon, Kabargah Road, East Colony, PS East Colony, Jamalpur, District Munger ....Petitioner Versus 1. The Union of India through the General Manager, E. Rly-17 Netaji Subhash Road, Kolkata 2. Chief Works Manager/ E.R./Jamalpur workshop, Jamalpur District- Munger, cum-Revising Authority 3. Dy Chief Mechanical Engineer (Production) –cum (Appellate Authority), E/Rly. Jamalpur workshop 4. Vice Principal, Pranali Technical School workshop, Jamalpur 5. Workshop Personnel Officer (Disciplinary authority), E. Rly. Jamalpur 6. Assistant Workshop Personnel Officer, E/Rly Jamalpur..Respondents ---------------------------------- For the petitioner: Sri Krishna Prasad, advocate For the respondents: Mr. Mahesh Prasad, advocate Mr. Anil Singh, advocate --------------------- 3 20-09-2011 Heard the parties. 2. From the submissions advanced on behalf of the petitioner and from the materials on record it appears that petitioner was appointed as Khalasi on 6-9-1989 by Workshop Personnel Officer who is said to be a senior scale officer. At that time he was aged only about 19 years. In the year 1991 he was promoted to the post of Khalasi Helper. Soon thereafter he was married but the marriage ran into troubled waters and on account of filing of a criminal case by the estranged 2 wife he was arrested in connection with a case under section 498A of the IPC and section ¾ of Dowry Prohibition Act. He remained under suspension for about 11 days in April, 1993. He was convicted for the aforesaid offence by the trial court and sentenced to simple imprisonment for one year. In appeal, by order dated 14-7-1998 his conviction under Dowry Prohibition Act was set aside but that under section 498A of the IPC was maintained along with sentence of S.I. for one year. He remained in jail custody between 28-7-1998 to 10-9-1998. Ultimately, by order dated 2-5-2009 passed by this court in criminal revisional jurisdiction the sentence was reduced to the period already undergone along with a fine of Rs. 500/- which was to be paid to the informant as compensation. It is claimed that he remained in custody for a total period of about 45 days. The Special Leave Petition preferred by the petitioner was dismissed by the Apex Court on 17-11-2000. 3. The present proceeding relates to order of removal from service on 2-5-1998 by an officer having 3 designation as Vice Principal, Pranali Technical School, Jamalpur who is said to be a junior scale officer. On that basis petitioner was removed from service on 4-5-1998. He preferred an appeal on 20-06-1998 but received no response. His Original Application bearing no. 845/2002 was disposed of on 17-10-2002 by Central Administrative Tribunal, Patna Bench, Patna with a direction to the authorities to dispose of his appeal/ representation. An order dated 28-01-2003 was passed by Chief Works Manager, Jamalpur who confirmed the punishment of removal from service. This order was passed on a representation dated 7-8-2002. Petitioner claims that he had filed a review petition to Chief Mechanical Engineer/ E.R. / Kolkata dated 16-2-2003 but that remained unattended. He filed a detailed O.A. no. 22/2011 along with M. A. no. 16/2011 (Limitation Application) before the Central Administrative Tribunal, Patna Bench, Patna. By the impugned order dated 24-1-2011 the Tribunal rejected the prayer for condoning the delay and, accordingly, the O.A. was dismissed. 4 4. Learned counsel for the petitioner has produced before us a copy of M.A. no. 16/2011 to show that several grounds were taken by the petitioner for seeking condonation of delay. A perusal of the limitation application discloses that in paragraph 10 an averment has been made that after the decision of Chief Works Manager, Jamalpur in 2003 the applicant engaged one lawyer Sri Uma Shanker Sharma of Patna but he kept the file unnecessarily for a long period and returned it without any action. In paragraph 11 it has been averred that the petitioner is a poor person belonging to scheduled caste community with meager income on which his family members are depending. He has expressed that after removal from job he had no money even for survival and anyhow he had managed to contest this case for reinstatement and does not have money even to come to this court. Petitioner has also relied upon a certificate provided by a doctor to show that he had become mentally ill from 12-2-2004 to 9-12-2009. That period does not cover the entire period and, as submitted by railway, it may not be safe to rely 5 upon the said certificate. However, considering the plea that he had handed over his paper to a counsel who took no action in the matter since 2003 and his poor economic condition, we are inclined to condone the delay in moving the Tribunal. 5. In fact we have heard the parties on merits as well and it is one peculiar and striking fact which has impressed us in favour of the petitioner. The order of punishment (annexure-6) discloses that the Vice Principal, Pranali Technical School, Jamalpur has passed the impugned order by virtue of power of disciplinary authority vested under rules without applying his mind to the nature of the criminal case and the punishment which was ultimately awarded to the petitioner. In a proforma order Rule 14 (1) of Railway Employees Disciplinary Appeal Rules, 1968 has been utilized and the blanks have been filled up which show a mere mention of section 498A of the Indian Penal Code and section ¾ of Dowry Prohibition Act which have been entered in a small blank space for recording that under those sections the employee was found 6 guilty. Thereafter some reference of representation of the petitioner has been made and the format mechanically mentions that conduct of the employee is defective and his continuance in public service is not desirable. According to us, when there was no departmental proceeding against the petitioner and the authorities had to discharge the duty of considering petitioner’s case in detail with full reference to nature of the criminal charges, his service status and the punishment ultimately awarded for coming to a conclusion as to what would be the appropriate punishment, minimum responsibility cast upon the disciplinary authority was to discuss the nature of criminal charges, findings and the sentence imposed, in the context of finding out appropriate punishment. 6. The law in respect of duty of disciplinary authority while considering appropriateness of punishment to be imposed on account of conviction in a criminal case has been now well settled by judgements of this court as well as of the Apex Court. 7 One may usefully refer to the judgement of the Supreme Court in the case of Satyavir Singh Vs. Union of India reported in A.I.R. 1986 SC 555. In paragraph (100) the Court has emphasized that it is not open to the civil servant to contend that he was wrongly convicted by the criminal court but he can contend that penalty imposed upon him is too severe or excessive or was one not warranted by the facts and circumstances of the case. 7. In the case of State of M.P. V. Hazarilal, (2008) 3 SCC, 273 the Supreme Court held that conviction for a criminal offence does not imply that dismissal must be imposed in every case. The disciplinary authority must exercise its power to select proper punishment reasonably and fairly, keeping in view the nature of offence and the sentence imposed. The Supreme Court clarified that legal parameters of judicial review have undergone a change and instead of Wednesbury principle of unreasonableness the doctrine of proportionality has gained currency. 8. In the case of State of Bihar V. Ram 8 Sarowar Prasad Singh, 2007 (1) PLJR 42 a Division Bench of this court of which one of us (Shiva Kirti Singh, J.) was a party, it was held that although the convicted employee cannot question the finding of guilt finally recorded against him by a competent court, the disciplinary authority is obliged to consider various aspects before imposing penalty and is also required to give fair treatment to such employee by giving opportunity of hearing on the quantum of punishment to be imposed. It was further emphasized that nature of offence is required to be considered before inflicting any penalty, particularly, major penalty. 9. Since from a bare perusal of order of removal we are satisfied that the concerned authority did not apply its mind to the relevant aspects of the matter, following the aforesaid judgements we set aside the order of punishment passed against the petitioner, dated 2-5-1998 contained in annexure-6 and remit the matter back to the competent disciplinary authority to pass afresh order of punishment in the light of principles of proportionality noticed above. 9 10. It is made clear that in the earlier order the authority had not considered the fact that petitioner has been acquitted of charge u/s ¾ of Dowry Prohibition Act. It had not even considered that punishment of imprisonment u/s 498A of the IPC was reduced to the period already undergone with a fine of Rs. 500/- only. 11. In order to enable the petitioner to bring these relevant facts to the notice of the competent authority, we grant the petitioner liberty to file a fresh representation pleading for award of only proportionate punishment. 12. In the facts of the case, we are of the considered view that punishment of removal from service would be disproportionate. The authority would be free to award any other punishment to the petitioner in accordance with law at an early date, preferably, within a period of three months from the date of production/ communication of this order. Petitioner should file his representation disclosing all the relevant facts for seeking lesser punishment within one month 10 from today. 13. Although we have condoned the long delay on the part of the petitioner in approaching the Tribunal yet we do not want the petitioner to be enriched unjustly in case he is reinstated in service with lesser punishment. Hence, we clarify that since the petitioner had to remain out of service on account of conviction for criminal charges and there was long delay in his approaching the Tribunal for the 2nd time, if he is reinstated he would be entitled only for salary and emoluments from the date of reinstatement and not for back wages although the earlier period shall be treated to be period spent in service for other benefits. 14. In this view, we are fortified by a judgement of the Apex Court in the case of Union of India V Jaipal Singh 2004 (1) SCC 121 where the Apex Court has held that since the employee was dismissed from service on conviction and was reinstated at a later date, in that case, on account of acquittal in appeal, he would not be entitled to back wages for the period of absence, that is, from the date 11 of dismissal to reinstatement but that period would otherwise be counted towards his service. This writ petition is allowed to the aforesaid extent. No costs. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)