Hanuman Singh v. State of Rajasthan — 1991 DIGILAW 522 (RAJ)

Honble G.S. SINGHVI, J.—The facts which are necessary for the disposal of this writ petition can briefly be stated here under : 2. The petitioner was appointed as Constable in the service of the Police Department of the Government of Rajasthan in the year 1965. He continued to serve in that capacity till he was removed from service by order dated 12.5.76 of the Commandant, 4th Battalion, Rajasthan Armed Constabulary, Bikaner, under whom he was working at that time. The petitioner was involved in a criminal case of private nature. He was treid, along with six other persons, for offence u/ss. 148 and 307 of the Indian Penal Code. The learned Sessions Judge, Bikaner, convicted the petitioner u/ss. 147 and 323 of the Indian Penal Code, in Sessions Case No. 35/75 State of Rajasthan v. Shiv Pratap Singh. The learned Sessions Judge sentenced the petitioner to imprisonment of one year and six months respectively on two counts and directed that both the sentences shall run concurrently. An appeal was filed by the petitioner against his conviction and in the S.B. Criminal Appeal. No. 226/76 decided on 02.1.81, the High Court partly allowed the appeal and the sentence was reduced to the period for which the petitioner has remained under custody. 3. Immediately after his conviction by the learned Sessions Judge, Bikaner, vide his judgment dt. 3.3.76, the Commandant, 4th Battalion, Rajasthan Armed Constabulary, Bikaner, passed an order dated 12.5.76 and dismissed the petitioner from service on the basis of his conduct which led to his conviction by the learned Sessions Judge, Bikaner. The petitioner served a notice of demand for justice on the respondents against his removal from service. He has stated that no reply to the notice of demand for justice was received. 4. In the writ petition, the petitioner has challenged the order of dismissal on the ground that no opportunity of hearing was given before the impugned order of punishment was passed. The other ground is that the conviction of the petitioner had not attained finality on the date of passing of the order dated 12.5.76 inasmuch as the appeal filed by him before the High Court was pending and the sentence awarded by the trial Court had been suspended by the High Court. The other ground is that the conviction of the petitioner had not attained finality on the date of passing of the order dated 12.5.76 inasmuch as the appeal filed by him before the High Court was pending and the sentence awarded by the trial Court had been suspended by the High Court. Yet another argument advanced on behalf of the petitioner is that there has been no application of mind by the competent authority on the facts and circumstances of the criminal case in which the petitioner had been convicted. He was not found guilty of any offence invol-ving moral turpitude. He was merely found guilty of a fight. The conduct of the petitioner, with reference to the criminal case, had nothing to do with the discharge of his duties as a Constable in the Police Department. Finally it has been submitted that the order of dismissal was passed on May 12, 1976 but dismissal was given retrospective effect from 3.3.76 and the petitioner has been denied the benefit of the period between 4.3.76 to 11.5.76 5. In reply to the writ petition the respondents have admitted the facts regarding employment of the petitioner, his trial u/ss 307 and 148 of the Indian Penal Code and his conviction u/ss 147 and 323 of the Indian Penal Code. It has been then stated that when the judgment of the trial court came to the notice of the respondents, the order dated 12.5.76 was issued. This action has been taken under Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and it was not necessary to give any opportunity of hearing to the petitioner, before passing of such an order. Reference has been made to the Circular of the Government dated March 22, 1975, which contains guidelines for taking action in respect of Government servant, who is convicted by a Court of law on a criminal charge. The respondents have asserted that the judgments of the learned Sessions Judge was final and mere suspension of sentence during the pendency of appeal before the High Court was no ground Tor the Government to withhold its hands from taking discipli-nary action against the petitioner. The respondents have stated that the petitioner was employed in the Rajasthan Armed Constabulary, which is an important Wing of the Police Department. The respondents have stated that the petitioner was employed in the Rajasthan Armed Constabulary, which is an important Wing of the Police Department. The duties of the personnel, serving in the Armed Constabulary is to maintain law and order and if a person belonging to this cadre is found guilty of a criminal offence, he cannot be retained in service. Retention of such person in service would affect the moral of the service. The petitioner had been found guilty by a competent court of law and, therefore, there was every justification of passing the impugned order dated 12.5.76. The petitioner had filed an appeal before the Dy. Inspector General of Police against his dismisssal from service. This appeal dismissed by the order dated 28.12.76. The petitioner has, however, suppressed this fact in the write petition. He did not file any review petition against the order passed by the appellate authority. The respondents have contested the grounds raised in the writ petition asserting that it was not obligatory for the respondents to have issued any notice of show cause to the net doner against the proposed penalty of dismissal from service. It was also not necessary for the respondent No. 2 to have given an opportunity of personal hearing to the Petitioner. The conviction of the petitioner was sufficient to enable the competent authority to pass the order of dismissal from service The authority conceded had taken into consideration the conduct of the petitioner which led to his conviction and, therefore, passed the order dated 12.5.76. The dismissal has been given retrospective effect because the petitioner had been convicted by the learned trial Court on 3.3.76. In fact, it was the duty of the petitioer to have brought the factum of his conviction to the notice of the authorities of the Department. 6. The first contention urged by Mr. M.R. Singhvi, learned counsel for the petitioner is that the order of dismissal was passed by the competent authority without application of mind. The impugned order dated 12.5 76 shows hat the stock pharases mentioned in Article 31l(2)(a) of the Constitution of India and Rule 19 of 1958 Rules have been reproduced. In fact, the competent authority did not consider the facts and circumstances of the criminal case in which the petitioner had been convicted. The impugned order dated 12.5 76 shows hat the stock pharases mentioned in Article 31l(2)(a) of the Constitution of India and Rule 19 of 1958 Rules have been reproduced. In fact, the competent authority did not consider the facts and circumstances of the criminal case in which the petitioner had been convicted. If the competent authority had applied its mind, there could have been no justification for passing of the order of dismissal. The case in which the petitioner was challaned arose out of a private dispute between the petitioner and his close relatives. It was a case relating to personal animosity of the members of the petitioners family and the opposite party and it had nothing to do with the discharge of the public duties of the petitioner. His record of service was absolutely clean. No adversity existed in his record. 7. Mr N.S.Acharya, learned Additional Government Advocate, submitted that the" competent authority had passed the order dated 12. 5 76, after due application of mind. The conduct of the petitioner was taken into account, before passing the impugned order. The competent authority has come to the conclusion that retention of the petitioner in public service was underirable and therefore, the order of dismissal from service was passed. The petitioner is a member of the Police Force of the State and the duties of the Police Force is to maintain law and order, to prevent commission of offences to investigate and apprehend offenders and to produce evidence in the court of law for conviction of persons who are found guilty of offences under various statutes. If a member of such Force is himself found guilty of having committed an offence and is convicted by a Court of law, the only proper course for the Departmental Authorites is, to remove from service. This is not only proper but necessary and also in public interest. 8. Article 311 of the Constitution gives two-fold protection to a person holding civil post. One is that he cannot be dismissed, removed or reduced in rank by any authority subordinate to the one which appointed him and the other that he is entitled to reasonable opportunity of hearing before any of these penalties are imposed. Proviso to Article 311 (2) of the Constitution of India carves out exceptions to the concept of reasonable opportunity of hearing. Proviso to Article 311 (2) of the Constitution of India carves out exceptions to the concept of reasonable opportunity of hearing. After the Constitution (42nd Amendment) Act, 1976 which came into force from 3.1.77, Article 311 reads as follows: "311 Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or State :-(l) No person who is a member of a civil service of the Union or an All-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall no be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply-(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction or a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final." 9. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final." 9. Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1951 (hereinafter referred to as the Rules, 1958) specifies seven kind of penalties which can be imposed on a Government servant for good and sufficient reasons recorded in writing. First three penalties specified in Rule 14 are minor penalties whereas the other four are major penalties. The major penalty include dismissal, removal and reduction in rank. Before any major penalty can be imposed on a Government servant of Rajasthan, procedure prescribed under Rule 16 has to be followed. This procedure involves serving of a chargesheet containing specific charges and statement of allegations, opportunity of reply to the charge-sheet, appointment of Inquiry Officer, provision for departmental representative as well as assistance to the delinquent employee, recording of evidence by the Inquiry Officer, oral as well as documentary, opportunity of cross-examination to the rival parties, submission of the report by the Inquiry Officer, consideration thereof by the disciplinary authority and finally the order of punishment. Rule 17 contains procedure for imposition of minor penalties. Rule 18 makes a provision for joint departmental enquiry against more than one Government servant. Rule 19 carves out an exception to the normal procedure to be followed for imposing the major punishments specified in Rule 14. For the purpose of this case, provision of Rule 19 is quite relevant and, therefore, the same is reproduced below; "19. Special Procedure in certain cases-Notwithstanding anything contained in rules, 16,17 and 18, (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) where the disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State, |t is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary." 10. A perusal of clauses (a) to (c) of proviso to Article 311 (2) of the Constitution as it now stands and Rule 19 goes to show that they deal wit the same subject-matter and, therefore, Rule 19 will have to be construed in such a manner so as to be consistent with the provisions of the Constitution. Both these provisions specifically provide that the doctrine of reasonable opportunity shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. Thus, the competent authority is vested with the power to pass order of major penalty against a person, who has been convicted on a criminal charge, if after taking into consideration the conduct which has led to the conviction of Government servant, the competent authority comes to the conclusion that such penalty shall be imposed. In that event it is not necessary for the competent authority to hold a departmental enquiry as envisages by Art. 311 (2) or by Rule 16 simplisitor or Rule 16 read with Rule 18 of the Rules, 1958." 11. In Divisional Personal Officer, Southern Railway v. T. R. Chellappan (1) the Supreme Court had held that requirement of giving a notice of hearing was implicit in the scheme of Article 311, even in cases where action was to be taken with reference to provision contained in proviso (1) to Article 311(2). This view of the Supreme Court was considered by a Constitution Bench in Union of India vs. Tulsi Ram Patel (2). By a majority decision the Constitution Bench over-ruled the decision of the Supreme Court in Chellapans case, in so far as it contained a proposition that a notice was required to be given to the Government servant before an action was taken against a Government servant for imposing major penalty on the basis of his conviction. In the aforesaid case, the majority of the Constitution Bench considered the various facets of Articles 309, 310 and 311 as well as the Article 14 of the Constitution of India and the principles of natural justice. After analysing the various parts of Article 311, the Court observed: "The language of the second proviso is plain and unambiguous. In the aforesaid case, the majority of the Constitution Bench considered the various facets of Articles 309, 310 and 311 as well as the Article 14 of the Constitution of India and the principles of natural justice. After analysing the various parts of Article 311, the Court observed: "The language of the second proviso is plain and unambiguous. The key words in the second proviso are "this clause shall not apply". By "this clause" is meant clause (2). As clause (2) requires an inquiry to be held against a government servant, the only meaning attributable to these words is that this inquiry shall not be held. There is no scope for ambiguity in these words and there is no reason to give them any meaning different from the plain and ordinary meaning which they bear. The resultant effect of these words is that when a situation envisaged in any of the three clauses of the proviso arises and that clause becomes applicable, the safeguard provided to a government servant by clause (2) is taken away. As pointed out earlier,-this provision is as much in public interest and for public good and a matter of public policy as the pleasure doctrine and the safeguards with respect to security of tenure contained in clause (1) and (2) of Article 311. Before, however, any clause of the second proviso can come into play the condition laid down in it must be satisfied. The condition for the appli-cation of each of these clause is different. In the case of clause (1) a government servant must be guilty of conduct deserving the penalty of dismissal, removal or reduction in rank which conduct has led to him being convicted on a criminal charge. In the case of clause (b) the disciplinary authority must be satisfied that it is not reasonably practicable to hold an inquiry. In the case of clause (c) the President or the Governor or a State, as the case may be, must be satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. The paramount thing, however, to bear in mind is that the second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second Article 311 (2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an inquiry." 12. The Court then proceeded to consider clause (a) of the second proviso to Article 311 (2) and observed as under: "Where a disciplinary authority comes to know that a Government ser-vant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if sd, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Chellappans case. This, however has to be done by it exparte and by itself. Once the disciplinary authority reaches the conclusion that the government servants conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the courts power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. 13. In Shanker Das v. Union of India (3) the petitioner had been convicted under Sec, 409 IPC, was given benefit of Probation of Offenders Act because according to the trial Court, the offence had been committed under the compelling circumstances. He was, however, dismissed from service. After referring to the observations of the trial court, the court proceeded to make these very instructive observations: "It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But that power, like every other power, has to be exercised fairly, justly and reasonably. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But that power, like every other power, has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311 (2) makes the provisions of that Article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical." 14. Earlier to the decision in Tulsi Ram Patels case, a learned Single Judge of this Court, considered this issue in Union of India v. Tara Chand (4). After examining the provisions of Article 311(2)(a), CM. Lodha, J. (as he then was), observed : "But with utmost respect I wish to submit that it would not be correct to say that the conduct and the conviction are inseparable nor it would be safe to lay down the conviction. It is true that the punishing authority may not recite the words "on the ground of conduct which has led to convictions its order. Nevertheless the contents of the order must lead to an inference that the authority had applied its mind to the conduct of the person leading to his conviction and had also taken the circumstances of the case into consideration while imposing the penalty. The relevant provi-sion namely R. 1719 (i) is in the same terms as Art. 311(2) proviso (a), under which the application of clause 2 may be dispensed with. It is absolutely necessary that the conditions contained in proviso (a) should be fully satisfied before a citizen is deprived of a regular enquiry into the charges levelled against him." 15. A similar question was considered in Hardayal Singh v. The State of of H.P. (5) . It is absolutely necessary that the conditions contained in proviso (a) should be fully satisfied before a citizen is deprived of a regular enquiry into the charges levelled against him." 15. A similar question was considered in Hardayal Singh v. The State of of H.P. (5) . "It is patently clear from the order passed by the punishing authority that the removal of the petitioner from service was ordered simply because he was convicted by a court of law and because according to the said authority the petitioner could not be allowed continue in service "according to Government rules". In other words the punishing authority seems to have inflicted the punishment of removal of the petitioner from the service merely because it was found that the petitioner was convicted by a court of law. There is nothing in the order to suggest that the punishing authority had in any manner applied its mind to the facts relating to the incident which led to the conviction of the petitioner. It had not considered what part the petitioner had played in the commission of the offence. One of the offences for which he had been convicted is the offence contemplated by section 149 I.P.C. which contemplates constructive liability of all those who are the members of an unlawful assembly for the substantive offences committed by other members of the same assembly. Therefore, the punish-ment for the said offence would depend much upon the actual part prayed by the petitioner as a member of the said assembly. The impugned order does not show that the punishing authority had taken any of these facts into consideration before selecting the extreme punishment of removal from service. In my opinion, therefore, it is quite clear that the punishment is awarded by the authority concerned simply because the said authority was of the opinion that the order of removal must ipso facto flow from a con-viction for a criminal offence irrespective of its nature Even the appellate and revisional authorities do not seem to, have applied their mind to this aspect of the matter. Even Rule 11 of the Central Civil Services (Classifica-tion, Control and Appeal) Rules contemplates different types of punishment, some of which are minor punishments and some are major punishments. These punishments are to be inflicted only in accordance with the nature and gravity of the offence. Even Rule 11 of the Central Civil Services (Classifica-tion, Control and Appeal) Rules contemplates different types of punishment, some of which are minor punishments and some are major punishments. These punishments are to be inflicted only in accordance with the nature and gravity of the offence. Therefore, at the time of making the selection of a particular form of punishment, the authority concerned should necessarily apply its mind to the facts of the case in order to determine what quantum of punishment would meet the ends of justice. Such a mind is obviousy not applied by the punishing authority in this case as is fully evident from the terms of the impugned order. If it cannot be challenged that all offences are not of the same character and should not be visited by the same punishment, irrespective of their nature, and if it is further found that the law itself stipulates major and minor punishments, it is difficult to conceive how the departmental punishment of dismissal must follow as a matter of course in every type of conviction by courts in a criminal case. To say so would be to fetter the discretion of the department itself." 16. In Thakorbhai Bbagabhai v. D.D.O. Surat (6) the learned Single Judge of Gujarat High Court held that an offence u/s 323 IPC cannot be said to be an offence involving moral turpitude. The learned Judge observed: "I do no think that it can be said that the alleged offences were offences involving moral turpitude in the sense that the alleged acts can be said to be a conduct which is contrary to honesty or good morale or is unethical, since at the most, it was an incident of some scuffle between the petitioner and other persons alleged to be involved in the incident with Yaqub. By no stretch of imagination without violence to the language it can be said that this act imputed to the petitioner, assuming it to be true, would constitute a conduct which may be labelled as dishonest or immoral or unethical." 17. From the various decisions referred hereinabove, it can be held that there is no mandatory obligation on the competent authority to impose one of the three major penalties of dismissal, removal or reduction in rank as soon as an employee is convicted by a court of law, on a criminal charge. From the various decisions referred hereinabove, it can be held that there is no mandatory obligation on the competent authority to impose one of the three major penalties of dismissal, removal or reduction in rank as soon as an employee is convicted by a court of law, on a criminal charge. In each and every case, the authority must apply its mind objectively, fairly and justly to the facts of the case, the conduct of the employee which has led to his conviction and the circumstances which have come before the Court during the trial of the offence with which the employee is charged. If after consideration of these factors, the employer or Government comes to the conclusion that any of the major penalty is to be imposed, it has a right to pass an appropriate order imposing punishment. 18. Even from the Circular dated March 22, 1975, this inference can be drawn. A portion or part of that Circular can appropriately be quoted below: "ii) On conviction of Govt. servant in a Court of law, the penalty imposed under rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 should be commensurate with the gravity of the misconduct, which led to his conviction. In a case where a Govt. servant has been convicted of an offence which is such as to render his further retention in public service prima facie undesirable, action to dismiss remove or compulsorily retire him from Govt. service should be taken promptly as soon as the conviction is pronounced by the trial Court." 19. A perusal of the aforesaid Circular shows that the conviction of the Government servant shall be for an offence which is such as to render his further retention in public service prima facie undesirable. This conclusion can be drawn only after application of mind to the relevant circumstances of the case in which the Government servant has been convicted by a Court of law. Thus, application of mind is inherent in the circular of the Government dated March 22, 1975. 20. In Sri Lekha Vidyarthi v. State of Uttar Pradesh (7), their Lordships of the Supreme Court have held that every State action must be fair and must not be arbitrary. It may not be necessary to communicate reason in support of the decision in all cases but existance of such reasons in the record is a must. 20. In Sri Lekha Vidyarthi v. State of Uttar Pradesh (7), their Lordships of the Supreme Court have held that every State action must be fair and must not be arbitrary. It may not be necessary to communicate reason in support of the decision in all cases but existance of such reasons in the record is a must. If the reasons do not exist for the decision, the decision is liable to be quashed as arbitrary. In the present case, so far as the order dated 12. 5. 76 is concerned, it merely recites the words used in proviso (a) to Article 311 (2) of the Constitution of India and Rule 19. The learned Additional Government Advocate has placed before me the record in which the order dated 12. 5. 76 was passed. From that record also it is not borne out that the respondent No. 2 had applied his mind to the circumstances of the case, in which the petitioner was convicted, his role in the commission of the offence and his record of service. There is nothing in the record to show that the authority had considered the retention of the petitioner undesirable in service, because of his part record, coupled with his conviction. The authority had not come to the conclusion that the petitioner has been found guilty of a criminal offence involving mora! turpitude. In fact, in the light of the decision in Thakorbhais case (supra) with which I am in agreement, the conviction u/s 323 of the Indian Penal Code, cannot by any element of justification be termed as conviction for offence involving moral turpitude. 21. This matter can also be seen from another angle. Recruitment to the Subordinate Service cadre in the Police Department is governed by the Rules framed under proviso to Article 309 of the Constitution of India and different Rules have been enacted from time of time. There were Rajasthan Police Subordinate Service Rules 1963, in the year 1966, Rajasthan Police Subordinate Service Rules 1966 were framed. In the year 1974 Rajasthan Police Subordinate Service Rules 1974 were enacted and presently Rajasthan Police Subordinate Service Rules 1989 are in existance. For other services also, similar Rules have been framed under proviso to Rule 309 of the Constitution of India. In almost all Service Rules there is a provision relating to character. In the year 1974 Rajasthan Police Subordinate Service Rules 1974 were enacted and presently Rajasthan Police Subordinate Service Rules 1989 are in existance. For other services also, similar Rules have been framed under proviso to Rule 309 of the Constitution of India. In almost all Service Rules there is a provision relating to character. In the Rules of 1974, which were applicable in the year 1976, when the petitioner was dismissed from service, the provision relating to character is to be found in Rule 12. This Rule reads as under: "Character-The character of a candidate for direct recruitment to any cadre must be such as to qualify him for employment in the service. He must produce a certificate of good character from the Principal, Academic Officer of the University, School or College in which he was last educated and two such certificates written not more than six months prior to the date of application from two responsible persons not connected with his school, college or University and not related to him. Note 1:—A conviction by a Court of law need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has as its object the overthrow by violent means of Government as by law established, the mere conviction need not be regarded as a disqualification. Note 2:—Ex-prisoners who by their, disciplined life while in prison and by their subsequent good conduct have proved to be completely reformed should not be discriminated against on ground of the previous conviction for purpose of employment in the service. Those who are convicted of offences not involving moral turpitude shall be deemed to have been completely reformed on the production of a report to that effect from the Superintendent, After Care Home or if there are no such homes in a particular district, from the Superintendent of Police of that district. Those convicted of offences involving moral turpitude shall be required to produce a certificate from the Superintendent After Care Home endorsed by the Inspector General of Prisons to the effect that they are suitable for employment; as they have proved to be completely reformed by their disciplined life while in prisons and by their subsequent good conduct in an After Care Home." 22. A perusal of the aforesaid Rule shows that the Rule making authority did not intend to exclude even convicts, Ex-prisoners, as also those convicted of offences involving moral turpitude, from the zone of consideration for the purpose of recruitment to the Subordinate Service in the Police Department. Thus, so far as the rules of recruitment are concerned, fresh employment can be given to an Ex-Prisoner also. If that is so, there can be no justification for imposing major penalty on a Government employee, merely on the basis of his conviction for a criminal offence by a competent court of law) 23. In this view of the matter, it must be held that the action taken by the respondent No. 2 in passing the order dated 12. 5. 76 resulting in dismissal of the petitioner from service, with effect from .3. 3. 76, cannot be sustained in the eye of law. 25. The learned counsel for the petitioner did not press the other two contentions relating to absence of notice and violation of principle of natural justice in passing of the impugned order dated 12. 5. 76. In my opinion, he rightly did so, in view of the decision of the Constitution Bench of the Supreme Court in Tulsi Rams case (supra). 25. Learned Additional Government Advocate submitted that the petition should be dismissed because the petitioner has not disclosed the fact that he had preferred an appeal and the same has been dismissed by the appellate authority. It is true that the petitioner should have made a mention of the dismissal of his appeal by the Dy. Superintendent of Police. However, that fact by itself is not sufficient to nonsuit the petitioner, because the appellate authority also took the view that action had been taken under the Government Circular dated 22. 3. 75, which were justified. 26. The writ petition is, therefore, allowed. The order dated 12. 5. 76 passed by the respondent No. 2 is quashed and set aside. The petitioner shall be reinstated in service. Respondent No. 2 will, however, be free to reconsider the matter and pass appropriate order in accordance with law. 27. Parties to bear their own costs.