| SooperKanoon Citation | sooperkanoon.com/54267 |
| Court | Central Administrative Tribunal CAT Kolkata |
| Decided On | Apr-23-2002 |
| Judge | G G Vice, S A B.P. |
| Reported in | (2003)(2)SLJ189CAT |
| Appellant | PulIn Behari Sardar |
| Respondent | Union of India (Uoi) and ors. |
(b) For an order directly the respondent to treat the enter period i.e. from 9.11.1979 till the date of re-instating in his former post as EDBPM service for all purpose." 2. The fact of the case as it appears from the O.A. is that the applicant was appointed as Extra Departmental Branch, Post Master (EDBPM) w.e.f. 19.6.1976 at Dara EDSO (Annexure-A). The petitioner has been performing his job satisfactorily and sincerely. There was constant persecution of the applicant by certain interested group who were active to implicate the applicant in some cases so that he could be removed from the post of EDBPM. The applicant belongs to the scheduled caste community and he was appointed as such on production of prescribed certificate to this effect as per Annexure-B.2.1. On 21.11.1979, respondent No. 5, the Inspector of Post Office Joynagar circle made a report in Jaipur Police Station against the applicant that while working as EDBPM the applicant appeared to have misappropriated a sum of Rs. 3,000/- on 28.8.1978 and requested the Incharge of the Police Station to start case against the applicant as per law. The F.I.R. is enclosed as Annexure-C. The respondents lodged in all four false criminal eases against the applicant alleging the applicant responsible for financial embezzlement.
2.2 The applicant made representation to the concerned authority stating that he has been illegally implicated in the cases in order to harass him.
2.3 The four criminal cases were filed before the learned Judge 1st Special Court, Alipore which were re-numbered at a subsequent stage as Special Case Nos. 9/87, 10/87, 11/87 and 17/91. All the above cases were tried. The applicant was removed (might have been placed under put off duty) due to these cases. The applicant made representation for demand of justice vide Annexure-D.2.4 All the four cases were heard by the learned Judge of the Special Court. After hearing, the learned Judge was pleased to observe that there is no prima facie case against the petitioner and the petitioner has wrongly and maliciously been implicated. The learned Judge was pleased to acquit the petitioner from the charges in all the cases vide Annexure-E collectively.
2.5. The applicant made representation demanding justice after his acquittal. But no action was taken by the respondent authorities. So he approached the Hon'ble High Court and filed writ petition being W.P.No. 23632 (W)/97 in which the Hon'ble High Court directed the writ petitioners to move the same before the appropriate Court. The applicant filed original application No. 429/98 before the CAT, Calcutta Bench and prayed for his reinstatement. The Tribunal permitted the applicant to withdraw the application as the same was defective with liberty to file a fresh application on 16.9.98 as per Annexure-F.The present application has been filed in compliance with the direction of the Tribunal dated 16.9.98 in which the prayers quoted above have been made by the applicant. The applicant has also filed M.A. No.501/2000 for condonation of delay of about 11 months in filing the fresh original application. Both the M.A. and O.A. were heard together for final disposal.
3. We have heard Mr. M.K. Bandyopadhyay, learned Counsel for the applicant and Mr. K. Sarkar, learned Counsel for the respondents. We have also gone through the application, reply to the O.A. alongwith various enclosures annexed therewith.
4. The learned Counsel for the applicant has submitted that the petitioner is innocent and cannot be removed from the service as four criminal cases made against him were dismissed by the competent Court of law. The dismissal of cases prove that they were made falsely to implicate the petitioner in criminal proceeding.
4.1. The learned Counsel further submitted that the respondent authorities cannot make inordinate delay to take back the petitioner in service when there is substantive representation on that score made by the applicant. The respondent authority should take back the petitioner. In service and any further delay will be against the principles of natural justice. The applicant should be recalled in service as this is the legitimate expectation of the applicant after being acquitted by the competent Court of law in the criminal cases.
The acquittal of the applicant from the criminal cases has already been communicated to the respondent authorities and, therefore, there is no jurisdiction or bonafide reason in not reinstating the applicant on his former post. This is the well settled principle of law that every employee should be reinstated in service if the charge against him is not proved and he is acquitted from the charges by the competent Court.
4.2. In view of the above, the learned Counsel submitted that in view of the fact that the applicant has been acquitted in all the criminal cases, he should be reinstated on the post from which he was removed (placed under put off duty) without any further delay.
5. Mr. Sarkar, learned Counsel for the respondents has contested the application and denied and disputed all the allegations and contentions except those which are admitted or matters of record. The learned Counsel has submitted that the application is not maintainable in the eye of law and the same is barred by estoppel, waiver and acquiescence.
5.1. The learned Counsel has further submitted that the applicant was appointed on 19.6.76 by respondent No. 3. He was placed under put off duty by order dated 3.12.1979 as four criminal cases were filed before the Special Court, Alipore bearing Nos. 9/87, 10/ 87, 11/87 and 17/91.
Temporary appointment was made on the post on 5.1.1980 for the smooth working of the office and such appointee has been continuing till now.
The applicant filed a case before the Hon'ble High Court bearing No.W.P. No. 23632(W)/97 on 29.10.97. O.A. No. 429/98 was filed before the Tribunal which was withdrawn by the applicant on 16.9.98. The applicant did not submit any document relating to his acquittal from criminal charges to the office of the respondent till date.
5.2. The learned Counsel has further submitted that the applicant personally did not submit the copy of the acquittal from the criminal cases but filed a case which was withdrawn by him. The respondent No. 3 did not take any decision as the matter was subjudice and waited till the outcome of the case.
5.3. The learned Counsel has further submitted that the applicant being an Extra Departmental Agent is not entitled to the allowance according to the rules and he cannot get any scale of pay.
5.4. The learned Counsel has further submitted that respondent No. 3 viz. SPOs, Presidency Division, Baruipur did not receive copy of the acquittal order in the four criminal cases filed against the applicant and the applicant also did not forward any copy of the said order to respondent No. 3 and, therefore, did not take any follow-up action.
5.5 The learned Counsel has further submitted that the copy of the order of four criminal cases was not received by the respondent No. 3, the appointing authority from the appropriate authority. On the xerox copy produced by the applicant before the Tribunal no relief can be granted to the applicant inspite of the fact that the Tribunal has given order in this regard. The copy of the order has not been received from the appropriate authority so far, and the case was subjudice, the competent authorities did not act in the matter and, therefore, there was no question to consider the reinstatement of the applicant.
5.6 In view of the above the learned Counsel submitted that application is without any substance and, therefore, the same requires to be dismissed.
6. From the above discussions, it is clear that the applicant working as EDBPM at Dara EDSO was placed under put off duty for being involved in four criminal cases relating to embezzlement. The cases were filed before the Special Court, Alipore as case Nos. 9/87, 10/87,11/87 and 17/91. The case No. 9/87 was decided on 18.8.90 by holding the accused viz. the applicant as not guilty of the offence and entitled to be acquitted. Similar orders were passed in Special Case No. 10/87 on 18.8.90. In case No. 11/87, it was ordered on 13.8.88 that PP was absent and the prosecution was not taking any interest, therefore, the same was filed for the present. The case No. 17/91 was decided on 5.4.93. It was observed that the State was taking adjournment since 4.10.91 in petition and no copy was served upon the accused person.
Therefore, the accused person was entitled to an order of discharge and applicant was accordingly discharged. Thus out of the four criminal cases, in the first two cases the applicant was acquitted while in the last two cases, the case was filed in one case and the applicant was discharged in the second. The applicant approached the Hon'ble High Court through W.P. No. 23632 (W)/97 which was disposed of by the Hon'ble High Court directing the writ petitioners to move the same before the appropriate Court. In reference to this order the applicant approached the Tribunal by filing an O.A. No. 429/98 which was permitted to be withdrawn vide Tribunal's order dated 16.9.98, The applicant thereafter filed the present O.A. In the writ petition before the High Court as well as in the original application before the Tribunal, the applicant has prayed for his reinstatement on the former post of EDBPM with all service benefits. It is thus clear that the applicant has never produced a copy of the decision of the Special Judge in the four criminal cases before the respondent No. 3 or any other respondents for taking follow up action. The stand of the respondent authorities is that the same has not been made available to them even now. The applicant also does not state or submit that he has ever approached the respondent authorities, especially respondent No. 3 with a copy of the orders of the Special Judge Alipore for necessary follow up action. As a result the respondent authorities have not taken any follow up action after the above decision in the criminal cases against the applicant so far. The respondent authorities have also taken the plea that they have not been supplied the copy of the order of the Special Judge by the applicant. After the order of the Special Judge, the applicant has approached the Hon'ble High Court and thereafter the Tribunal. The whole matter was subjudice and, therefore, the respondent authorities did not take action on the order of the Special Judge in the four criminal cases though they came to know about the same through writ petition before the Hon'ble High Court and original applications before the Tribunal.
7. The point at issue in this case relates to follow up action after the final order of the Special Judge in the four criminal cases filed against the applicant. It is clear that the applicant has not made any representation for taking necessary action by the respondent authorities after final order was passed by the Special Judge in the criminal cases enclosing the copies of the order of the Special Judge.
The normal practice in Government Department is that Court cases, criminal or civil-filed by the Department or relating to the Department are carefully watched on each date of hearing. It is ensured by the concerned Department that the cases are followed up properly in the concerned Courts and the Department does not suffer because of the default of non-prosecution or non-presentation before the Courts. The same practice and procedure must have been followed by the office of the respondents. Even if a copy of the final order in the four criminal cases against the applicant was not supplied by the applicant, it was the duty of the respondent authorities to procure certified copies from the concerned Court and take follow up action not only in respect of the applicant but in respect of the matter at issue in the concerned cases. The submission of the respondent authorities that they were not made available copies of the final orders of the Special Judge and, therefore, they did not take any follow up action is not palatable and is difficult to digest. It speaks of very adversely about the working of the office of the respondent authorities in general and the office of the respondent No. 3 specially. The respondent No. 3 has definitely failed to discharge his one of the allotted duties regarding follow up and watch on the Court proceeding. It requires to be suitably noticed by the higher authorities of the respondent No. 3. The higher authorities of the respondent No. 3 are also desired to take remedial action in such matters so that such things do not recur and are avoided in future.
8. From the above discussions, it is clear that the four criminal cases were filed against the applicant in the Special Court and they were finally decided/disposed of. The final order in the cases was not supplied to the respondent No. 3 by the applicant with his representation for follow up action on them. The respondent authorities especially respondent No. 3 also did not suo moto as a part of his allotted duties and responsibilities obtain the copy of such order and take further action in the matter as required by the law and the rules of the Deptt. No doubt, the applicant suffered from negligence on his part in not doing as required from him. Similarly, the respondent authorities, especially respondent No. 3 also suffered from similar negligence on his part so far as the criminal cases relating to the applicant are concerned. Carelessness or negligence on the part of the applicant or the respondent authorities, especially respondent No. 3 cannot be taken as an excuse for discharge of allotted duties and responsibilities. The follow up action after decision in the criminal case has been delayed by them, but the same cannot be allowed to remain without any action for all the times to come. We, therefore, would like to direct the applicant as well as the respondents suitably in the matter so that follow up action is taken on the orders of the Special Judge, Alipore within a stipulated period.
9. In view of our observations, we allow this application partly with the following observations:-- (i) The applicant should make a representation for his reinstatement on the post detailing the facts of the case and attaching certified copy of the order of the Special Judge in the four criminal cases filed against him to the respondent authorities, especially respondent No. 3 within a period of two weeks from the date of communication of this order.
(ii) The respondent authorities especially respondent No. 3 shall on receipt of the above representation alongwith the certified copy of the orders consider the same according to the rules and pass a reasoned and speaking order within a period of six weeks from the date of receipt of the representation in his office and communicate the decision to the applicant within ten days thereof.
(iii) The respondent authorities especially respondent No. 3 shall on his own also obtain certified copies of the order of the Special Judge, Alipore in the four criminal cases within a period of two weeks from the date of communication of this order and consider the case of the applicant within a period of six weeks according to the rules even if no representation etc. as ordered above is received from the applicant and complete his file/records by communicating the orders so arrived at to the applicant within a period of ten days thereof.