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TMI Blog2012 (5) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 7.10.2008 to be in the manner in which we have stated above. - WP(C).No. 5011 of 2010 - - - Dated:- 12-3-2012 - MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN, MR.JUSTICE C.T.RAVIKUMAR, JJ. For Appellant: SRI.O.V.RADHAKRISHNAN (SR.), ADV. SRI.C.S.GOPALAKRISHNAN NAIR For Respondent: SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EXCISE, SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA JUDGMENT Thottathil B.Radhakrishnan, J. 1.These two writ petitions filed under Article 227 of the Constitution, one by the employee and the other by the establishment, challenge a decision of the Central Administrative Tribunal, Ernakulam Bench, for short 'CAT'. 2.The employee, then a sepoy, was remanded on an allegation as to commission of an offence and was in custody from 25.7.1986. On 30.7.1986, in terms of the provisions of Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, for short, `CCA Rules', the competent authority passed an order that he is under deemed suspension. He was convicted on 5.2.1994. Following that, the employee was dismissed from service on 8.4.2005, in terms of Rule 19(1) of the CCA Rules. This was done after following t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that disciplinary proceedings followed, including by issuance of memo of charges and an enquiry in which the employee had participated. It is submitted on behalf of the employee that, there not having been any specific order reinstating him in service, he could not have been treated as one in service to be proceeded with on account of any alleged ground of commission of any offence. It is also pointed out that ultimately, the attack on the disciplinary proceedings would be that it is without jurisdiction. 9.As regards the disciplinary proceeding which has now culminated in an order of dismissal at the hands of the appointing authority (disciplinary authority), that is not a matter now within our jurisdiction under Article 226/227 of the Constitution as enunciated by the Apex Court as regards jurisdiction of Tribunals under the Administrative Tribunals Act in L.Chandrakumar v. Union of India [AIR 1997 SC 1125]. 10.Be that as it may, we need to answer the following issues. (i) What is the effect of Annexure A7 order dated 7.10.2008 issued by the Joint Commissioner of the Cochin Commissionerate of Central Excise and Customs? (ii) Could the employee be treated as one li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent court of law and the employee has been acquitted of the said charge; in consequence of such acquittal, the competent authority has decided that the said order of dismissal should be set aside; and, on a consideration of the circumstances of the case, the competent authority also decided that a further enquiry could be held under the provisions of the CCS Rules against the employee, on the allegation that led to his dismissal. This means that all relevant factors for taking the decision as contained in Annexure A7 were focused upon by the competent authority and the first among the decisions rendered by the competent authority in the aforesaid order is that the order of dismissal from service is set aside. That is a self working order. The order of dismissal has been set aside thereby on 7.10.2008. The second limb is one whereby further enquiry is found necessary and it is ordered to be held under the provisions of the CCS Rules. This is also within the format of law and is not even under challenge before us. 14.Now, the crucial issue is the effect of clause (iii) of the impugned Annexure A7. It directs the continuance of the employee to be under deemed suspension with effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent never challenged the order of the High Court acquitting the employee. May be under the procedural laws, it would not have been possible except in rare cases for the Government of India to have challenged the order of acquittal. When there is no recourse to a higher court against the order of acquittal and if it is decided that a departmental enquiry may be held, a formal order should be made setting aside the order imposing penalty on the basis of the conviction and ordering such departmental enquiry. These two limbs of the instructions of the Government have been scrupulously followed by the competent authority in clauses (i) and (iii) of the impugned Annexure A7 order. Now, the question is whether such an exercise can also be coupled with a decision to continue the employee under deemed suspension under Rule 10(4). As already noted, the premise of Rule 10(4) is unconnected with the action that would follow under Rule 19(1). Obviously, nothing prevented the competent authority from passing an order of suspension along with the setting aside of the order of dismissal from service. This could have been done under Section 10(1) of the Rules. Essentially, all that was wanted, was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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