UNION OF INDIA Vs. S S KUSHWAHA

JUDGEMENT

(1.) THIS Writ Petition filed under Article 226 of the Constitution of India challenges the Order of the Central Administrative Tribunal ( Hereinafter referred to as"cat"), Mumbai Bench, mumbai dated 26th July, 2001. By the said Order, the CAT allowed the Original Application No. 426 of 1996 filed by the respondent herein and set aside the Order dated 26th March, 1996, compulsorily retiring the respondent from service.

(2.) THE facts stated in brief are as under :the respondent was appointed as Lower division Clerk on a temporary basis in the employees State Insurance Corporation. The 1st services of the respondent were regularized on february, 1968. It appears that on 23rd October, 1997, an F. I. R came to be lodged against the respondent. Pursuant to which the respondent was arrested by the Superintendent of Police, Thane. The respondent was in police custody for seven days. By an Order passed on the same date, the respondent was suspended in terms of Sub Rule (2)of Rule 10 of CCS ( CCA ) Rules, 1965. The suspension of the respondent was revoked on 13th december, 1979. On 1st/2nd November, 1995, a Memo came to be issued to the respondent in which memo 76 Criminal cases which were pending against the respondent were mentioned. The respondent was called upon to submit the details of all the cases registered against him as also disclose any other case or cases which are filed against him and was also called upon to furnish copies of the Judgment, if passed in any case. The respondent was also informed that failure on his part to furnish the aforesaid information would result in necessary action being taken by the petitioner under the existing Rules. The said Memo dated 1st/2nd november, 1995, was replied to by the respondent on 10th November, 1995. It appears that the matter rested there.

(3.) ON January, 1996, a Meeting of the review Committee was held for the purposes of reviewing the cases of employees under FR 56 (J) / 48 (i) (b) of CCS Pension Rules, 1972. The petitioner's case was considered alongwith the cases of other employees. In the said Meeting of the Review Committee, a unanimous decision was taken to compulsorily retire the respondent from the service of the Corporation under Rule 48 of CCS pension Rules 1972 read with Regulation 7 (2) of esic ( Staff and Conditions of service )Regulations, 1959. In accord with the said decision of the Review Committee, the respondent was compulsorily retired with effect from 28th May, 1996. The respondent challenged the said order of compulsory retirement in the CAT, Mumbai. The said order of compulsory retirement was challenged by the respondent inter alia on various grounds mentioned in the said Original Application. The petitioner herein justified the said decision of compulsorily retiring the respondent by taking a stand before the CAT that the decision arrived at by the Review Committee to compulsorily retire the respondent is not only based on the conviction of the respondent in case No. 27924 of 1979 but it is also based on a number of Criminal cases pending against the respondent. It was further the stand of the petitioner that even, if, one of the cases as mentioned in the list of the cases pending against the respondent was wrong, the order of compulsory retirement is still justified. It appears that before the CAT, it was revealed that there was no Criminal case being case No. 27924 of 1979 registered against the respondent and therefore, there was no conviction dated 24th december, 1979, against the respondent. The CAT came to a conclusion that what has weighed with the petitioner in passing the order of compulsory retirement is the conviction of the respondent in criminal case No. 27924 of 1979 and since the said premise was an erroneous premise on the basis of which the order of compulsory retirement was passed against the respondent and since the said fact had solely weighed with the Review Committee, the CAT was of the view that the said order of compulsory retirement was not sustainable. The CAT was of the view that since the factual substratum did not exist, the very basis of the order of compulsory retirement therefore vanishes. The CAT has also taken into consideration the fact that though 90 cases have been registered against the respondent, in none of the cases the respondent has been convicted till the date of passing of the order of compulsory retirement.