IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SIXTEENTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 13541 of 1999 Between: D.P. Manoharlal, S/o Sri Durga Prasad, M--28 Messenagar, 2 Training Battalion, 1 EME Centre, Secunderabad Resident of Secunderabad. ..... PETITIONER AND 1 The Major General, EME, Sourthern Command HQ, Pune -- 411 001. 2 The Commandant, 1 EME Centre, Secunderabad. 3 The Central Administrative Tribunal., Bench , Hyderabad HACA Bhavan, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to may be pleased to issue a writ of certiorari or any other appropriate writ calling for the records pertaining to the order dated 1/6/1999 passed by the Central Administrative Tribunal, Hyderabad. Bench in O.A. No. 1139/98, and set aside the same by declaring the Order No.21207/EST/M-28/CIV - I dated 20/8/1996 issued by the 2nd Respondent imposing the penalty of removal from service on the petitioner as confirmed by the 1st Respondent vide his Letter No. 21201/ENE/Coorf(A) dated 7-7-1998 as illegal, arbitrary, unconstitutional, violative of principles of natural justice and malafide for reinstatement into service with all consequential benefits such as arrears of pay and allowances, seniority, promotion etc, and pass any other order or orders as is deemed fit, proper, necessary and expedient in the circumstances of the case. Counsel for the Petitioner: MR.S.KHADER MOHIDDIN Counsel for the RespondentS: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following ORDER: HON’BLE SRI JUSTICE V. ESWARAIAH AND HON’BLE SRI JUSTICE P. SWAROOP REDDY Writ Petition No.13541 of 1999 ORDER: (Per Sri P. Swaroop Reddy, J) This Writ Petition is filed against the order, dated 01.06.1999, passed by the Central Administrative Tribunal, Hyderabad in O.A.No.1139 of 1998. The relevant facts of the case are as follows: The petitioner was placed under suspension w.e.f. 25.07.1993 by order, dated 16.03.1995, issued by the Commandant, 1 EME Centre, Secunderabad, respondent No.2 herein, on the ground that he was detained in police custody from 25.07.1993 to 21.09.1993 and thereafter, a charge sheet, dated 17.04.1995, was issued framing the following charges against him: “ARTICLE OF CHARGE I In that No.M-28 Messenger Shri DP Manoharlal was detained in police custody from 25 Jul 93 to 21 Sep 93 under IPC 302 & 307 and was released on bail on 22 Sep 93. Shri DP Manoharlal by his above act of suppressing material information has exhibited lack of maintaining absolute integrity unbecoming of a Govt. servant thereby violating Rule 3 of CCS (Conduct) Rules, 1964. ARTICLE OF CHARGE II In that No.M-28 Messenger Shri DP Manoharlal was submitted an application for grant of leave for the period from 13 Jul 93 to 23 Sep 93 on the reasons of domestic affairs, is during his detention period in police custody, by giving knowingfully false reasons for his absence, suppressing the material information regarding his detention in police custody.” The petitioner submitted his explanation, dated 18.05.1995, denying the allegations levelled against him and asserting that he was not guilty of the same. An enquiry was conducted and the Enquiry Officer submitted a report, dated 06.05.1996, holding that the petitioner is guilty of the charges levelled against him and recommending imposition of major punishment. Consequently, by orders, dated 20.08.1996, passed by respondent No.2, the petitioner was imposed punishment of removal from service and that the same shall not be a disqualification for future employment under the Government with immediate effect. It is also relevant to mention here that the petitioner was chargesheeted for the offence punishable under Sections 302 and 307 IPC along with another accused, Ashok Kumar, who is said to be his brother, in Sessions Case No.427 of 1997 on the file of the learned III Additional Metropolitan Sessions Judge, Hyderabad. In connection with that offence, he was arrested on 25.07.1993 and was released on bail on 22.09.1993. Subsequently, vide judgment, dated 30.09.1997, the petitioner was acquitted along with other accused. The allegations against the petitioner are that (1) he has not informed the fact of his being in police custody during the relevant period and (2) he has given wrong information in his leave application stating that he was applying leave for domestic purpose. Challenging the dismissal order, dated 20.08.1996, the petitioner filed O.A. and the Central Administrative Tribunal dismissed the same holding that the inaction on the part of the petitioner to inform his superiors promptly about his arrest amounts to suppression of material facts etc. Sri K. Subrahmanya Reddy, learned Senior Counsel appearing for the petitioner, contends that Central Civil Services (Classification, Control and Appeal) Rules 1965 (for short ‘the CCS(CCA) Rules’), on the basis of which, charges were framed against the petitioner, are not applicable to him. In support of his contention, the learned Senior Counsel relied on the decisions of the Supreme Court in Union of India v. K.S. Subramanian[1] and Union of India v. S.B. Mishra[2]. He, therefore, contended that as the enquiry was conducted under the CCS(CCA) Rules, which are not applicable to civilian employees in the Defence Service, the enquiry itself is vitiated and the petitioner could not have been punished by applying the CCS(CCA) Rules. There is no dispute that charges were framed against the petitioner under the CCS(CCA) Rules and punishment was imposed by applying the same Rules. The learned Assistant Solicitor General appearing on behalf of the respondents contended that as held by the Hon’ble Supreme Court in Director General of Ordnance Services v. P.N. Malhotra[3], though the CCS(CCA) Rules are inapplicable to a civilian employee in Defence Service for conducting an enquiry thereunder, it did not cause any prejudice to the delinquent and did not vitiate the punishment. He, therefore, submitted that it cannot be said that any prejudice is caused to the petitioner as the CCS(CCA) Rules are nothing but Codification of principles of natural justice and are more elaborate and beneficial than the broad principles of natural justice. In the present case, it is not in dispute that at no stage, including before the Central Administrative Tribunal, the petitioner did not take the plea that the CCS(CCA) Rules, under which the charges were framed against him and enquiry was conducted, are not applicable. For the first time, he cannot raise such a plea before this Court, as observed by the Hon’ble Supreme Court. As such, the contention that the CCS(CCA) Rules, under which the charges were framed and enquiry was conducted, are not applicable and for that reason the punishment imposed is illegal, cannot be upheld. The learned Senior Counsel has contended that there was no opportunity for the petitioner to inform the appropriate authorities about his being in police custody or judicial remand, as earlier to amendment to Section 50 of the Code of Criminal Procedure 1973 (for short “Cr.P.C.”) on 23.06.2006, there was no possibility for an accused to inform anyone about his arrest. It is under Section 50-A of Cr.P.C., a provision was made for the accused to be in a position to inform a friend or relative of him about his arrest, as it was made obligatory on the part of the police to give such information. It is also the contention of the learned Senior Counsel that in fact the superior officers of the petitioner knew that the petitioner was in custody and they have corresponded with the police about the same. As contended by the learned Senior Counsel, the fact of the petitioner being in police custody was known to his superior officers, but still it was obligatory on his part to inform the same to the authorities concerned, if not while he was in custody, but at least after his release. On the other hand, as revealed from the second charge, while applying for earned leave, the petitioner has not mentioned about his being in police custody/remand during the relevant period and has pleaded domestic reasons for applying leave. Thus, there cannot be any dispute that the petitioner had definite intention of suppressing the fact of his involvement in an offence under Sections 302 and 307 IPC, his arrest and his being in custody during the relevant period in connection with that offence. In the above circumstances, either on law or on facts, there is absolutely no case for the petitioner. However, we hold that the punishment of removal from service imposed on the petitioner, for mere lying (suppression of facts which in fact were known to his superiors), is shockingly disproportionate. However, it is a fact that the petitioner was involved in an offence under Section 302 IPC, that might have weighed while imposing the penalty of removal from service. That being the case, merely not giving information with regard to arrest of the petitioner and then giving false information in the leave application saying that he was applying for domestic reasons, instead of saying that he was in judicial custody, in our opinion, is not such a grave circumstance to impose the punishment of removal from service particularly when his superiors know about his being in custody even earlier to his leave application. For the aforesaid reasons, we set aside the punishment imposed on the petitioner and remit the matter to the authorities concerned for re-consideration and to impose appropriate punishment. With regard to the further action to be taken in the matter after imposing punishment afresh, Rule 54-B of the Fundamental Rules shall apply. The Writ Petition is accordingly ordered. No costs. _________________ V. ESWARAIAH, J ______________________ P. SWAROOP REDDY, J Dt.16.06.2009 VGB [1] AIR 1989 SC 662 = 1989 Supp (1) SCC 331 = (1976) 3 SCC 677 [2] (1995) 5 SCC 657 [3] 1995 Supp (3) SCC 226