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| Government servant cannot be discharged from service only on account of the pendency of a criminal case against him: CAT | | | Early Times Report
JAMMU, June 21: Central Administrative Tribunal holds that the service of a Government servant cannot be terminated or the Government servant cannot be discharged from service only on account of the pendency of a criminal case against him. The reason is obvious. Unless the guilt is proved, one is presumed to be innocent. Moreover, criminal case may be launched out of enmity etc. It is, therefore, the conviction and not the pendency of a criminal case which should be taken into account for disciplinary action."
This significant judgment has been passed by a Bench of Central Administrative Tribunal comprising B Anand Member (A) and Rajinder Singh Dogra Member (J) in a petition filed by Arsam Imtyaz Malik seeking setting aside Order No.CEJ/ADM/01 of 2024 dated 03-012024 issued by the respondent No.2 by virtue of which the appointment order issued in favour of the applicant under SRO 43 has been withdrawn that too without adhering to the principles of natural justice and also seeking direction to the respondents to allow the applicant to perform his duties at PWD (R&B) Division Bhaderwah pursuant to his appointment order dated 05-12-2023 and joining order dated 06-12- 2023."
The applicant is aggrieved of the Govt. Order No.CEJ/ADM/01 of 2024 dated 03-01-2024 issued by the respondent No.2 by virtue of which the appointment order issued in favour of the applicant under SRO 43 has been withdrawn that too without adhering to the principles of natural justice. The applicant came to be appointed under SRO 43 on account of death of his father by virtue of Order No.CEJ/ADM/232 of 2023 dated 22-11-2023 issued by the respondent No.2 in compliance to the approval conveyed by the administrative department. Pursuant to his appointment, the applicant came to be posted in PWD (R&B) Division, Bhaderwah for further duties by the respondent No.3 by virtue of Order No.CEC/Adm/05 of 2023 dated 05-12-2023 and accordingly the applicant joined in PWD (R&B) Division Bhaderwah on 06-122023.
The applicant at the time his appointment was made to swear an affidavit in which the applicant has sworn that he has not been convicted in any offence by any court of law and the applicant is facing trial in one case. It is only after swearing the aforementioned affidavit that the applicant was allowed to join and came to be posted in PWD (R&B) Division, Bhaderwah. On 23.12.2023, the respondent No. 4 addressed a communication bearing No. EE /PWD /R&B /BHD /2023-24/1055-56/8 in which it has been averred that the applicant has been allowed to join in the division after proper verification of the documents and on the receipt of character/antecedent certificate from CID issued by the SSP/Dy SP Headquarters for Special DG CID J&K vide Form No.55821 dated 17-05-2023 on 06-12-2023. It has further been averred that the affidavit sworn by the applicant reveals that he is under trail in one case and the said case is not disposed till date and accordingly the instructions were sought for the withdrawal of the salary of the applicant by the respondent No.4 from the respondent No.3.
CAT after hearing Adv Sheikh Najeeb for the applicant whereas Deputy AG Hunar Gupta for the UT, observed that the Rule(s) as mentioned hereinabove, nowhere provide pendency of a criminal case against a candidate to disqualify him for his entry into the service. The reason for this is obvious. Pendency of a criminal case cannot lead to the conclusion of committing the offence by the accused. Presumption is otherwise. No person is presumed to be guilty of an offence unless convicted by a competent Court after trial. It is also our common experience that trial of a criminal case consumes much time and ultimately the accused may be acquitted therein. Refusal of appointment on the ground of pendency of a criminal case would, therefore, result in miscarriage of justice to the candidate because even on his ultimate acquittal he cannot enter into service, CAT said.
CAT further observed that adverting to the facts of the instant case, it would be noticed that the applicant himself by virtue of an affidavit has disclosed the fact that an FIR has been registered against him bearing No.0087/2023 under Section 8/21 of NDPS Act of Police Station, Bhaderwah which is pending disposal in the court of Sub Judge, Bhaderwah.
CAT is of the considered view that mere registration of an FIR cannot be made the basis and equated with a finding of guilt recorded by a competent Court. In other words, registration of a case cannot lend the colour of conviction. The action of the respondent department in terminating the applicant would amount to holding the applicant guilty of the offence. Such a course of action would be totally unwarranted.
CAT held that the service of a Government servant cannot be terminated or the Government servant cannot be discharged from service only on account of the pendency of a criminal case against him. The reason is obvious. Unless the guilt is proved, one is presumed to be innocent. Moreover, criminal cases may be launched out of enmity etc. It is, therefore, the conviction and not the pendency of a criminal case which should be taken into account for disciplinary action."
In the facts and circumstances of the case, CAT is of the considered view that the respondents could not have straightway terminated the applicant without considering the relevant factors like the nature and gravity of the accusation because, in case, these allegations are subsequently found to be false or not proved in the trial, resulting in acquittal, the same would cause undue hardship to the applicant, as the applicant would then be appointed only after getting clearance during investigation and trial and would be offered appointment subsequently occurring vacancies for no fault on his part, which may take several years if not decades.
CAT further observed that as stated earlier, the applicant has not been terminated on the ground that his character is such which makes him unsuitable for the service. Neither it is the case of the respondents nor there is any adverse report against the applicant of this nature after verification of his antecedents. Hence, CAT is of the definite view that the applicant has wrongly been terminated merely on the ground of pendency of FIR against him.
Termination here is in violation of principles of natural justice as before resorting to termination a reasonable opportunity to show cause had not been accorded to the applicant. Natural justice is implicit in rules and has to be read as part and parcel thereof, if not specifically provided, as held by the Apex Court in J.A. Naiksatam v. Prothonotary Senior Master.
With these observations CAT allowed the petition and impugned Order No.CEJ/ADM/01 of 2024 dated 03-01-2024 issued by the respondent No.2 by virtue of which the appointment order issued in favour of the applicant under SRO 43 has been withdrawn, is hereby set aside. Respondents are directed to allow the applicant to perform his duties at PWD (R&B) Division Bhaderwah pursuant to his appointment order dated 05.12.2023 and joining order dated 06.12.2023.
CAT further said that on conclusion of the criminal trial, law shall take its own course, and the appointment offered to the applicant may be withdrawn / terminated. —JNF |
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