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Raju v. Union Of India Thru' Secy. Communications And Others - WRIT - A No. 66900 of 2005  RD-AH 5324 (8 November 2005)
Hon'ble Rakesh Tiwari, J.
By means of this writ petition under Article 226 of the Constitution of India, it is prayed that show cause notice dated 23rd September, 2005, issued by respondent no. 2 to the petitioner, Annexure 3 to the Writ Petition, may be directed not to be given effect to by the respondents and be quashed by this Court.
Heard Sri Vipin Kumar Saxena, counsel for the petitioner, Sri K.C. Sinha, Additional Solicitor General of India representing respondent nos. 1, 4 & 5 and Sri B.N. Singh counsel for the respondent nos. 2 and 3.
The wood-cut profile of the case is that the petitioner is Phone Mechanic in Bharat Sanchar Nigam Ltd., Aligarh. He and one Sri Naresh Pal Singh were caught red handed taking bribe on 13.9.1997 by the Central Bureau of Investigation (for short ''C.B.I'). A First Information Report was accordingly lodged against them.
After investigation, the C.B.I issued charge sheet implicating the petitioner under Section 120-B of the Indian Penal Code read with Section 13(2) of the Prevention of Corruption Act. The petitioner was convicted by the Special Judge (C.B.I.), Ghaziabad appointed under Prevention of Corruption Act convicted by order dated 22.3.2003 under Section 120-B I.P.C read with Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act in Special Case No. 8/2002. He was sentenced (i) to undergo rigorous imprisonment of six months with fine of Rs.500/- under Section 120-B I.P.C; (ii) rigorous imprisonment of six months with fine of Rs.500/ under Section 7 of the Prevention of Corruption Act and (iii) one year rigorous imprisonment with fine of Rs.1000/- under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. All the sentences were to run concurrently. The petitioner preferred Criminal Appeal No. 3854 of 2003 before this Court against the order of conviction. The appeal was admitted and execution of the sentences and realization of fines, aforesaid was stayed during the pendency of the criminal appeal vide interim order dated 29.7.2003.
Counsel for the petitioner has vehemently urged that before applying Rule 19 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short ''CCS & CCA Rules') it is incumbent on the part of the authority to consider the ''conduct' which led to the conviction of the Government servant on a criminal charge. He submits that in arriving at such conclusion, the authority has to act reasonably, fairly and with due application of mind to the existence or otherwise of the conditions and circumstances visualized by clause (a) of Rule 19 of the CCS & CCA Rules. He further submits that respondent no. 2 has issued the show cause notice to the petitioner simply on the basis of his conviction after a lapse of more than two years of conviction and since the conduct of the petitioner leading to the conviction has not been considered, the impugned show cause notice is bad in law and is liable to be quashed. It is also submitted that there is no allegation that the petitioner ever demanded any bribe, had ever met him or t or had any connection with his work. He states that the petitioner has been convicted because money is alleged to have been paid by way of bribe, was recovered from his possession. Therefore, his conduct was not so serious to warrant the extreme penalty of removal from service.
Counsel for the petitioner then contended that the judgment and order of the trial court, convicting the petitioner, have been challenged which is pending before this Court as such, the impugned show cause notice having been issued when the matter is sub judice before High Court is unsustainable and deserves to be quashed.
The counsel for the petitioner then drew the attention of the Court to Rule 116 contained in Volume III of the Post Office Manual which provides that if an employee has been convicted by a Court of law and his retention in service is not desirable, the order of his dismissal/removal from service has to be passed after his appeal is decided.
Lastly, he urged that no major punishment can be awarded to the petitioner without holding a domestic enquiry. Admittedly, show cause notice having been issued only on the ground of conviction of the petitioner by a Court of law, in the absence of any departmental enquiry, the impugned notice is absolutely illegal and cannot be sustained.
Counsel for the respondents submits that the writ petition has ben filed against a show cause notice as such, is pre mature and is not maintainable.
The first contention of counsel for the petitioner that before applying Rule 19 of the CCS & CCA Rules, conduct of the petitioner ought to have been considered has no force. The documents available on record tell a sordid tale of affairs regarding conduct of the petitioner. He was caught red handed with bribe money at the secluded place where the trap had been laid by the C.B.I. officials. His conduct is not above board.
The next argument that the impugned show cause notice has been issued after two years of conviction also has no force for the simple reason that the authority issuing the notice acted after the Court clarified the interim order in the appeal. Ordinarily, writ petition against show cause notice is not maintainable unless it has been issued by incompetent authority as held in the case of Malladi Drugs Pharmacist Ltd. Vs. Union Of India- 2004 S.C.W-4048.
The submission of the counsel for the petitioner that there was no allegation of taking bribe against the petitioner is not correct. The petitioner was trapped and caught red handed. Though conviction is not found but it is not baseless.
As regards initiation of departmental enquiry during pendency of appeal is concerned, , suffice it to say that the legal position is settled that criminal and departmental proceedings can proceed simultaneously. The petitioner has challenged the show cause notice and the writ petition is premature.
Before parting with the case, it would not be out of place to mention that the competent authority is fully empowered to decide whether in a particular case, order of major penalty should be passed or not after the conviction of the employee by the trial court or to await for the result of possible appeal or revision, as the case may be. In the instant case, the competent authority has merely issued a show cause notice and has not passed any final order.
There is no illegality or infirmity in the impugned show cause notice.
For the reasons stated above, the writ petition fails and is accordingly dismissed . No order as to costs.
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