STATE OF GUJARAT v. SUDAMASINGH LOTANSINGH — 1993 DIGILAW 429 (GUJ)

S. NAINAR SUNDARAM, J. ( 1 ) THE respondents in Special Civil application No. 3011 of 1989 are the appellants in this Letters Patent Appeal. The petitioner in the Special Civil Application is the respondent in this Letters patent Appeal. Convenience suggests that we shall refer to the parties as per their array in the Special Civil Application. ( 2 ) THE petitioner was serving as a Sepoy in Ahmedabad Central Jail. On 21-4-1989 the petitioner was dismissed from service taking note of his conviction in a murder case by the Fourth Additional Sessions Judge, azamgarh, Uttar Pradesh. As against the conviction, the petitioner has preferred an appeal before the High Court of Allahabad and the same was pending at the time when the Special Civil Application was disposed of by the learned single Judge and we are told that the appeal is, even as on date, pending. Here itself we must note that though in the order of dismissal dated 21-4-1989, the rule quoted is "rule 8 of the Gujarat Civil services (Discipline and Appeal) Rules, 1971", hereinafter referred to as "the rules" - this quoting of Rule 8 is obviously and admittedly a mistake because that rule merely sets down the Authorities to institute disciplinary proceeding, and the procedure for initiation of proceedings and imposition of penalties are set forth in other relevant rules. There is a common ground expressed before us that the relevant rule to be invoked and in substance invoked is Rule 14 of the rules concerning special procedure in certain cases and one of the cases is "where 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", as in the present case. We will presently refer to Rule 14 of the Rules. The petitioner came to this Court impugning the action of the respondents in and by which the petitioner was dismissed from service as above. ( 3 ) BEFORE the learned single Judge, the primary contention advanced and which found favour with him was that the conviction has not become file and an appeal against the conviction is pending and hence, the order of d : missal from service, as happened in the present case without any enquiry, is not tenable. ( 3 ) BEFORE the learned single Judge, the primary contention advanced and which found favour with him was that the conviction has not become file and an appeal against the conviction is pending and hence, the order of d : missal from service, as happened in the present case without any enquiry, is not tenable. The learned single Judge took note of the pronouncement of a Bench of this Court in Ahmadkhan Inayatkhan v. District Superintendent of Police, Banaskantha, XXX (2) [1989 (2)] GLR 1301 and preferred to follow it on the primary contention raised before him to the other pronouncements to which his attention was drawn and allowed the Special Civil Application quashing the impugned order of dismissal of the petitioner. It must be noted that in the pronouncement of the Bench in Ahmadkhan Inayatkhan v. District Superintendent of Police, banaskantha. XXX (2) [1989 (2)] GLR 1301, action was taken under Rule 14 of the Rules. The Bench on the question as to whether there should be a show cause notice before imposition of penalty followed the pronouncement of an earlier Bench in Kiritkumar D. Vyas v. State of gujarat, 1982 GLH 687 : ( 1982 (2) GLR 79 ). The Bench also expressed the view that until the criminal proceedings are finally over, no action can be taken, simply on the ground that lower Court found the delinquent guilty. For the second proposition before the Bench which was the primary proposition before the learned single Judge in the present case, the Bench followed the view of a learned single Judge of this Court in Laxman waghjimal v. K. N. Sharma, D. S. P. Kutch, 1985 GLH (UJ) 28. We have been informed that pursuant to the order of the learned single Judge the petitioner has been reinstated in service and he has about a year to go in service. As against the decision of the learned single Judge the respondents have preferred this Letters Patent Appeal. We have been informed that pursuant to the order of the learned single Judge the petitioner has been reinstated in service and he has about a year to go in service. As against the decision of the learned single Judge the respondents have preferred this Letters Patent Appeal. Earlier, on 15-2-1991, finding that there is a conflict between decisions of two Benches of this court, one in Ahmadkhan Inayatkhan v. District Superintendent of Police, banaskantha, XXX (2) [1989 (2)] GLR 1301; and the other in Letters patent Appeal No. 119 of 1984, there was a Reference to the Full Bench with regard to the correct interpretation to be put on the word "conviction" occurring in clause (a) of the second proviso to clause (2) of Art. 311 of the Constitution of India. So far as that question is concerned, namely - would the "conviction" at the hands of a competent criminal Court in the first instance suffice, or should the "conviction" await confirmation at the hands of a final or ultimate competent criminal Court, the Full Bench to which one of us (S. Nainar Sundaram, C. J.) was a party, has rendered its opinion on 9-8-1993, saying :"the conviction spoken to in clause (a) of the second proviso to clause (2) of Art. 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position, and action, taken on the basis of such conviction, need not conform to clause (2) of Art. 311, since by the express terms of the second proviso thereto, clause (2) of Art. 311 is dispensed with. "the Full Bench has made it clear that it is not expressing any view on Service rules, Circulars and Instructions providing for different contingencies and speaking in different languages. The following passages in the pronouncements of the Full Bench make the position clear :"if the rules adopt the same language verbatim, as found in clause (a) of the second proviso to clause (2) of Art. 311, what we are going to pronounce may hold good for them and not otherwise. The following passages in the pronouncements of the Full Bench make the position clear :"if the rules adopt the same language verbatim, as found in clause (a) of the second proviso to clause (2) of Art. 311, what we are going to pronounce may hold good for them and not otherwise. Here, we must strike a note of caution that the language of the rules governing the services could be couched in a manner different from the language of clause (a) of the second proviso to clause (2) of Art. 311. In that case, the language of the rule will be decisive and govern. Only when there is a parity between the rule governing the services and clause (a) of the second proviso to clause (2) of Art. 311, what we are expressing as our opinion will hold good. As we made it clear at the inception of this pronouncement of ours, our concentration is only on the language of clause (a) of the second proviso to clause (2) of Art. 311 and we have not traversed beyond that provision and any opinion of ours will have relevance only where the service rule or rules are in pari materia with the above provisions of the Constitution. On Rules, Circulars, and Instructions providing for different contingencies and speaking in different languages, we have no comment and we say this at the risk of repetition because the opinion, which we express, should not be taken to have touched upon such provisions. "the Full Bench relegated the question of analysis of the facts of the case and a decision on merits over them to the appropriate Court and that is how this Letters Patent Appeal is coming up for further consideration before us. In view of the answer of the Full Bench on the primary contention advanced before and accepted by the learned single Judge, the view taken by the learned single Judge on that question will have to be eschewed. ( 4 ) HOWEVER, Mr. In view of the answer of the Full Bench on the primary contention advanced before and accepted by the learned single Judge, the view taken by the learned single Judge on that question will have to be eschewed. ( 4 ) HOWEVER, Mr. Ajit D. Padival, learned Counsel for the petitioner/ respondent herein would submit that apart from the primary contention, for which an answer has been given by the Full Bench, there is the other contention which relevantly arises for consideration in the Special Civil Application and which has not been gone into by the learned single Judge, in view of his acceptance of the primary contention, and that the other contention requires our consideration and answer. Learned Counsel for the petitioner would say that Rule 14 of the Rules has got its own implications speaking in favour of the petitioner with regard to affording an opportunity of being heard on the question of imposition of penalty and since the Full Bench has made it clear that apart from expressing an opinion on the language of the clause (a) of the second proviso to Art. 311 (2) of the Constitution of India, it has not traversed beyond that provision and hence we must assess the implications of Rule 14 of the Rules taking guidance from the pronouncements specifically speaking on the subject and decide the case, What the learned Counsel for the petitioner submits is legitimate because as we could see from the passages extracted above the pronouncement of the Full Bench has not touched Rules, circulars and Instructions providing for different contingencies and speaking in different languages and, therefore, we are obliged to proceed to consider the other question as raised by the learned Counsel for the petitioner. ( 5 ) RULE 14 of the Rules runs as follows :"special procedure in certain cases:- (1) Nothing contained in Rule 8 or 9 shall apply - (i) Where 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, 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 Government is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure. (2) In cases to which the provisions of sub-rule (l) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it deems fit : provided that the Commission shall be consulted before passing such orders in any case, in which such consultation is necessary. " ( 6 ) RULE 8 of the Rules speaks about the authority to institute proceedings and Rule 9 of the Rules set forth elaborate procedure for imposition of major penalties. As we could see from Rule 14 in the three contingencies arising, a special procedure could be adopted without reference to Rules 8 and 9. Of the three contingencies for the purpose of the present case we are concerned with the contingency set forth in clause (i) of sub-rule (1) of Rule 14 when it says "where 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 we find that as per sub-rule (2) of Rule 14, in cases action is taken resorting to sub-rule (1) of Rule 14, "the Disciplinary Authority may consider the circumstances of the case concerned and pass such an order as deemed fit. " It is either or rule similar to Rule 14 which came up for consideration before pronouncements of this Court. Before we come to the pronouncements of Benches of this Court dealing with Rule 14 of the Rules, it would be appropriate if we first refer to pronouncements of this Court rendered by a learned single Judge speaking on Rules similar to Rule 14 of the Rules. ( 7 ) IN Bholanath Khanna v. Union of India and Ors. , 1975 (1) SLR 277, a learned single Judge of this Court had occasion to consider the implication of Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, hereinafter referred to as "the Railway Rules". Rule 14 of the Railway Rules runs as follows :"14. ( 7 ) IN Bholanath Khanna v. Union of India and Ors. , 1975 (1) SLR 277, a learned single Judge of this Court had occasion to consider the implication of Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968, hereinafter referred to as "the Railway Rules". Rule 14 of the Railway Rules runs as follows :"14. Special Procedure in certain cases : notwithstanding anything contained in Rules 9 to 13 - (i) Where any penalty is imposed on a Railway 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 by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii) Where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these Rules, the Disciplinary Authority may consider the circumstances of the case and make orders thereon as it deems fit : provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule. "a bare reading of Rule 14 of the Railway Rules bears out that it is practically in pan materia with Rule 14 of the Rules. Rule 14 of the Railway rules also contemplates three contingencies in which special procedure could be adopted. But in all the three contingencies, the later part of Rule 14 of the Railway Rules as in sub-rule (2) of Rule 14 of the Rules contemplates the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit. " In that case there was invoking of clause (ii) of Rule 14 of the Railway Rules, with regard to dispensing with holding of "an enquiry in the manner provided in these Rules", and the learned single Judge opined that "rule 14 (ii) at the highest may authorise dispensing with an enquiry in the sense of examination of witness and hearing the defence. " However, it does not dispense with the requirement of rules 9 (2), 9 (3) and 9 (4) to the extent that they oblige the Disciplinary authority to furnish to the Railway servant concerned with a statement of relevant facts on the basis of which the imputations are made. It also obliges the Disciplinary Authority to afford an opportunity to the Railway servant concerned, to state his case or to explain in his written statement the circumstances appearing against him. It is, therefore, clear that in so far as these requirements are not dispensed with by Rule 14 (ii) there is noncompliance on the part of the respondents and impugned order deserves to be nullified and quashed. ( 8 ) HERE it could be stated that Rule 14 (ii) of the Railway Rules, corresponding to Rule 14 (ii) of the Rules spoke about dispensing with only the conduct of the enquiry in the manner provided and so far as Rule 14 (i) of the Rules, which is invoked in the present case, is concerned, it totally dispenses with only the conduct of the enquiry without any reservation in the case of conviction on a criminal charge; and hence the above observations of the learned single Judge may not have any relevance for the purpose of the present case. But we find that the learned single Judge in Bholanath Khanna v. Union of India and Ors. , 1975 (1) SLR 277 has examined the question from the other angle also, as regards affording an opportunity to show cause against the proposed penalty as conferred by Rule 10 (5) of the Railway Rules. We must note that so far as the Rules are concerned, Rule 10 (4) (b) of the rules also speak to the same effect as Rule 10 (5) of the Railway Rules with regard to affording an opportunity to the delinquent servant to make a representation as against the proposed penalty. On the question of affording an opportunity to the delinquent servant to show cause against the proposed penalty, the learned single Judge observed as follows :"examining the matter from the other hand, there is nothing in Rule 14 (ii) which authorises the Disciplinary Authority from dispensing with the requirement as regards affording of opportunity to show cause against the proposed penalty. Now, this is a very valuable right conferred by Rule 10 (5), a right to make a representation to the Disciplinary Authority that even if he is found guilty of the fault alleged against him, there are extenuating circumstances which would justify imposing of a different or lesser penalty than the penalty proposed by the authority concerned, is an invaluable right. The Railway servant may be able to show that having regard to the nature of the fault, the attendant circumstances, his length of service, the nature of the service put in, the personal circumstances of the servant concerned, and having regard to other penalty a lenient view deserves to be taken. It must be realised that quantum of punishment is a very delicate question which requires to be resolved by the competent authority, be it a Judge presiding over a Criminal Court or a Disciplinary Authority exercising disciplinary jurisdiction. The punishment imposed must neither be too excessive nor too lenient. It must be just, proper, adequate at the same time not too harsh nor too lenient. It has either to be deterrent or reformative. And in the absence of a representation of the other side. it would be impossible for the Disciplinary authority to take a just decision on the question of quantum of sentence. It must be emphasised that nothing turns on the aspect that circumstances oblige the Disciplinary authority to dispense with the inquiry. It cannot be contended (hat if no inquiry is held there is no purpose or point in extending the opportunity to show cause against the proposed penalty. The finding of guilt has nothing to do with the quantum of punishment. The quantum of punishment must depend upon the surrounding circumstances specified earlier. The right to show cause against the proposed penalty can be meaningfully availed of. even if no opportunity is afforded to the Railway servant concerned to participate in the inquiry. He can show that even if he is guilty he is entitled to a more lenient treatment than proposed to be meted out to him having regard to the extenuating circumstances which are known to him alone and which he alone can place before the Disciplinary Authority. He can show that even if he is guilty he is entitled to a more lenient treatment than proposed to be meted out to him having regard to the extenuating circumstances which are known to him alone and which he alone can place before the Disciplinary Authority. The learned Judge in the course of his judgment also considered the implications of not giving opportunity to a servant who might have been convicted for a criminal offence, and observed as under : there is nothing in sub-rule (1) of Rule 14 to show that it authorises the Disciplinary authority to dispense with the requirements regarding affording opportunity to state his defence or to show cause against the proposed penalty. All that it authorises the officer concerned is to pass appropriate orders to the effect that having regard to the fact that there is a conviction by a Criminal Court, it is sufficient to obtain the comments of the servant concerned on the point of guilt and on the point of quantum of punishment. In rule 14 (i) also the ^emphasis is only on the aspect of dispensation with the inquiry and not with the requirements from the stand point of other rules. So sub-rule (1) of Rule 14 in terms refers to the passing of appropriate orders in the context of an expediency to hold an inquiry against the servant concerned in the manner prescribed by the Rule. Here also what is dispensed with is the strict compliance with the manner prescribed by the rules and not with the entire inquiry. And at any rate it also makes no reference to the requirement relating to affording an opportunity to show cause against the penalty proposed to be inflicted. " ( 9 ) IN H. P. Thakore v. State of Gujarat and Ors. , XX [1979] GLR 109 the very same learned single Judge of this Court adverted to Rule 7 (12) (a) of the Gujarat Panchayat Service (Discipline and Appeal) Rules, 1964, hereinafter referred to as "the Panchayat Rules", and brought forth to the forefront considerations that should weigh with the Disciplinary Authority for imposition of penalty and a need on its part to apply its mind to certain vital considerations. It must be noted that Rule 7 (12) (a) of the Panchayat Rules enjoins upon the Disciplinary Authority to determine what penalty should be imposed on the person charged, taking note of certain enumerated materials. We find that it would be sufficient if we extract the relevant part of the headnote as follows :"before imposing the economic death penalty of dismissal or removal from service a Disciplinary Authority is bound to apply his mind to the three vital considerations, namely, (1) as regards the nature and magnitude of the established charge, (2) as regards the desirability or otherwise of retaining the Government servant in service in the context of the charges found proved against him. and (3) as to whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate. Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings punishment is not and cannot be the end in itself. Punishment for the sake of punishment cannot be the motto. " ( 10 ) THE decision of the learned single Judge in Bholanath Khanna v. Union of India and Ors. , 1975 (1) SLR 277 was adverted to by a Bench of this court in Kiritkumar D. Vyas v. State of Gujarat, 1982 GLH 687 : ( 1982 (2) GLR 79 ) while considering Rule 14 of the Rules and the Bench chose to adopt the ratio of the learned single Judge about affording an opportunity to the delinquent with regard to the proposed penalty. The Bench also adverted to the following passage in the pronouncement of the Apex Court in Divisional personnel Officer v. T. R. Challappan, AIR 1975 SC 2216 :"the concluding part of Rule 14 (1) merely imports a rule of natural justice in enjoying that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. The word consider in the last part of Rule 14 (1) merely connotes that there should be active application of the mind by the Disciplinary Authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. The word consider in the last part of Rule 14 (1) merely connotes that there should be active application of the mind by the Disciplinary Authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This provision confers power on the Disciplinary Authority to decide whether in the facts and circumstances of a particular case penalty, if at all, should be imposed on the delinquent employee. " ( 11 ) THE Bench also took note of ratio of the very same learned single judge in H. P. Thakore v. State of Gujarat Ors. , XX [1979] GLR 109. After such reference, the Bench observed as follows :"it is, therefore, clear that the Disciplinary Authority even for its own benefit to arrive at a just decision has to afford an opportunity to the delinquent to have his say, on the quantum of punishment. This circumstance would only be within the knowledge of the delinquent and without having the benefit of the same the Disciplinary Authority would be unable to strike a balance between too harsh a punishment and too lenient a penalty. In the instant case, the Disciplinary Authority had denied himself the said benefit. " ( 12 ) IN Ahmadkhan Inayatkhan v. District Superintendent of police, Banaskantha, XXX (2) [1989 (2)] GLR 1301, a Bench of this court found that there was a failure to give notice to show cause before imposition of penalty. That was also a case arising under Rule 14 of the rules; the servant though convicted by the lower Court, had taken up the matter to the High Court, and the Bench followed the ratio of the pronouncement of the earlier Bench in Kiritkumar D. Vyas v. State of gujarat, 1982 GLH 687 and held that failure to give such notice vitiated the order of dismissal. It is true, the Bench in this case went further in adopting a reasoning that until the criminal proceedings are finally over, no action could be taken. This reasoning of the Bench could not servive in view of the pronouncement of the Full Bench. Otherwise the pronouncements of the earlier Benches guide and bind us on the other question raised before us. This reasoning of the Bench could not servive in view of the pronouncement of the Full Bench. Otherwise the pronouncements of the earlier Benches guide and bind us on the other question raised before us. ( 13 ) IN the present case, what happaned is nothing more than the ultimate order dated 21-4-1989 by which the petitioner was dismissed from service. Nothing preceded the said order and no opportunity was afforded to the petitioner even to make his say on the proposed punishment. Rule 14 (2) of the Rules enjoins upon the Disciplinary Authority to consider the circumstances of the case and pass orders as he may deem fit. Such consideration must certainly take in a deliberation concerning the penalty and the consideration would not be a fair and a complete one, unless the delinquent has been heard on that. This norm stood violated in the present case. Hence, we have to sustain the order of the learned single Judge, though not for the reasons expressed by him, but for the reasons expressed by us as per our above discussion. Thus, we dismiss this Letter Patent Appeal. We make no order as to costs. .