Man Singh v. State of Rajasthan — 1997 DIGILAW 904 (RAJ)

Honble PALSHIKAR, J. – The petitioner who was Assistant Sub- Inspector of Police in Rajasthan Police has by this petition challenged the order passed by the respondent, State in exercise of its powers under Rule 19 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as `the Rules) terminating the services of the petitioner as his conduct has laid to hisconviction by court of competent criminal jurisdiction. While passing this order, the fact that the appeal is pending was ignored. (2). The petitioner was charged under the provisions of Sec. 342, 366-A and 376 of the Indian Penal Code on the allegation of having abducted and raped a girl called Kalawati. During this trial, proceedings for departmental action against thepetitioner under Rule 16 of the Rules was commenced and Circle Inspector was appointed as Enquiry Officer, thus the departmental action for misconduct under the Rules was started, during the pendency of criminal prosecution both of which can be simultaneously commenced and no illegality was committed till then. (3). That on 1.5.93, the criminal case was decided and the petitioner was found guilty of an offence under Sec. 354 of the Indian Penal Code and was sentenced to suffer simple imprisonment for four months. The petitioner preferred an appeal against this order. It was admitted and the sentence was suspended. On 3.7.93, a notice was issued to the petitioner to show cause why action against him should not be taken under Rule 19 of the Rules. The petitioner showed cause which wasnot acceptable and therefore, on 3.9.93, order of punishment was passed. He was penalised with compulsory retirement. (4). The petitioner filed an appeal against this order which was decided on 22.12.95 and the same was rejected. In the meantime, criminal appeal No. 180/93 against the conviction of the petitioner was decided by this Court and the petitionerwas acquitted by the order dt. 19.1.95. However, this fact was not noticed by the D.I.G. Police, Udaipur Range, Udaipur while deciding the appeal on 22.12.95. It is in the circumstances that the present petition is filed impugning the order of punishment passed under Rule 19 of the Rules. (5). 19.1.95. However, this fact was not noticed by the D.I.G. Police, Udaipur Range, Udaipur while deciding the appeal on 22.12.95. It is in the circumstances that the present petition is filed impugning the order of punishment passed under Rule 19 of the Rules. (5). It is submitted by the learned counsel that Rule 19 embodies the exceptionto the normal Rule envisaged by Article 311 of the Constitution and permits the respondent, State to dispense with an enquiry as contemplated by Rule 16 and proceed to consider awarding of punishment under Rule 19. According to the learned counsel in such circumstance, when the judgment of conviction is set-aside by the higher court, it becomes necessary that the order passed under Rule19-1 (a) is also revoked. Opposing the petition, it is contended by the learned counsel for the State that it is the disciplinary action which has been taken after conviction is recorded by a court of competent jurisdiction. It is permissible in law to take disciplinary action and penalise a government employee even if he has been convicted by a court of competent jurisdiction. According to Shri Vyas, learnedcounsel penalty in disciplinary matter can be imposed independently and the fact of conviction on the same set of circumstances by a criminal court does not amount double jeopardy. This proposition is obviously correct and sustained by several decisions of the several courts in India. (6). The question which remains to be considered and decided is whether apenalty imposed under Rule 19 on the basis of a conviction can remain after the order of conviction which forms basis of the order of penalty ceases to exist being reversed by the higher authority. (7). An employee of the Government of the State or instrumentality of the State, as contemplated by Article 12 of the Constitution of India is given a special status than the normal contractual status that arise between every master and servant or employer and employee. Special protections are given constitutionally first and by subordinate legislation thereafter in this relation. Elaborate procedures are established for holding disciplinary enquiries of Government servants and it is a settled law now that the procedure being a Code in itself, must be substantiallyfollowed with the principles of natural justice. Failure to do either result in vitiating the penalty imposed. (8). Special protections are given constitutionally first and by subordinate legislation thereafter in this relation. Elaborate procedures are established for holding disciplinary enquiries of Government servants and it is a settled law now that the procedure being a Code in itself, must be substantiallyfollowed with the principles of natural justice. Failure to do either result in vitiating the penalty imposed. (8). One such protection granted to the Government servant is under Article 311 of the Constitution of India which reads as under :– ``311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1) 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 enquiry 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 not be necessary `to give such persons 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 let to his conviction on 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). The Constitution, thus lays down a rule that no person in the employment of the State shall be dismissed without being informed of the charges against him and after giving him a reasonable opportunity of being heard, in respect of those charges. To this rule an exception is provided in cases where the dismissal, removal or reduction in rank is on the ground of a conduct which has led to his convictionon a criminal charge. (10). To the same effect are the provisions of the CCA Rules of 1958. Rule 14 of these rules provides the punishments that can be imposed. Rule 16 provides the procedure for imposing penalties which are major in nature and Rule 17 provides the procedure for minor penalties. Rule 18 deals with a joint enquiry and Rule 19 incorporates the exceptions to the application of Article 311. For the purposes of present case, Rule 19 is relevant. The rule reads thus :– ``19, Special procedure in certain cases:– Notwithstanding anything contained in Rules 16, 17 & 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 Government is satisfied that in the interest of the security of the State, it 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. (11). It will be seen that Rule 19 is therefore, virtual reproduction of the provisoto Article 311 (2). It is in the light of these provisions of law that the legality, validity and propriety of the order of dismissal dt. 3.9.93 is to be considered. (12). (11). It will be seen that Rule 19 is therefore, virtual reproduction of the provisoto Article 311 (2). It is in the light of these provisions of law that the legality, validity and propriety of the order of dismissal dt. 3.9.93 is to be considered. (12). I have already taken a view in writ petition No. 6695/91 that Rule 19 is an exception to the principles of natural justice and therefore, should be observed strictly as an exception. I have also taken a view that order under Rule 19 cannotbe mechanically passed and the Disciplinary Authority is enjoined with a duty, statutory in nature, to consider the conduct of the delinquent which has led to his conviction on a criminal charge. (13). The question which arises in the present petition in my opinion is corrollary to what has been decided earlier by me. In fact the question is whetherthe order of Disciplinary Authority under Rule 19 is passed after considering the conduct of the delinquent who has led to his conviction on the criminal charge without following the procedure prescribed by Rule 16 of the Rajasthan Civil Services (C.C.S.) Rules, 1958 can be sustained when the order convicting the delinquent of a criminal charge set aside and the delinquent is acquitted of the cri-minal charge. This aspect has already been considered at length by a Full Bench of this Court in D.B. Civil Special Appeal No. 44/83 decided on 4th March, 1987. The Full Bench was constituted to resolve a conflict in two Division Benches of this Court taking a contrary view on the question of taking proceedings under Rule 19 during the pendency of the appeal from an order of conviction. After holding thataction under Rule 19 can be taken during the pendency of the appeal. It was observed by Full Bench of this Court that if at later stage, order of conviction is set aside, the order of punishment passed under Rule 19 also stands vitiated and has to be reversed. This decision rendered in 1987 was made reportable but unfortunately has not been reported. (14). In all humility, I may point out that the reasoning given by the Full Bench of this Court in the decision cited above is virtually the same has been given by me in my earlier judgment dt. 19th March, 1997, which was also made reportable but has not been reported. (14). In all humility, I may point out that the reasoning given by the Full Bench of this Court in the decision cited above is virtually the same has been given by me in my earlier judgment dt. 19th March, 1997, which was also made reportable but has not been reported. I am in respectful agreement with the views expressed by the Full Bench. The Full Bench has after considering the provisions of Rule 311 andRule 19 observed as thus : ``To our mind the true construction of clause(a) is that the conviction of a person by a criminal court comes into operation no sooner it is made and it will be open to the government to pass an order of dismissal of removal or reduction in rank immediately after the criminal court records conviction and it is for the appointing authority to decide as to whether the conduct which has led to conviction on a criminal charge should be considered during the pendency of appeal against conviction or not. If the appointing authority decides that the conduct which has led to the conviction of a government servant on a criminal charge should be taken into consideration and the government servant should be dismissed or removed or reduced in rank, it will always run the risk of conviction being later set aside in appeal or revision and no sooner the conviction is set aside, it will take effect from the date it was recorded and is wiped of and the government servant will be entitled to be reinstated with full back wages. It we read clause (a) of the second proviso to Article 311 (2) of the Constitution, as it is and as we should read it, we are unable to construe ``conviction, as `final conviction or `ultimate conviction and to our mind the conviction will mean and include the conviction by the trial court and clause (a) of second proviso to Article 311(2) of the Constitution, will be attracted even though an appeal against conviction is pending in a higher court, and the proceedings have not been disposed of. (15). It will thus be seen that an order under Rule 19-1 (a) cannot stand after the order of conviction is set aside. (15). It will thus be seen that an order under Rule 19-1 (a) cannot stand after the order of conviction is set aside. This is obviously because the order was allowed to be made without proper enquiry under Rule 16 of the C.C.S. Rules because enough opportunity as observed by the Full Bench given to the delinquent to defendhimself and additional opportunity to do so all over again need not be given. In fact benefit is given to the State to make an order of conviction as an exception under Rule 19 taking advantage of the judgment and the opportunity given as observed above. Consequence of this proposition necessarily is that the delinquent also must get the consequential benefits of reversal of that order of conviction, if it takes placeat a subsequent date. The State having taken an advantage of dispensing with enquiry under Rule 16 of the C.C.S. Rules must suffer the penalty of getting the order set aside in the event of subsequent reversal of the order of conviction. In the present case such being the position, the order dt. 3.9.93 is liable to be set aside.. It is also, therefore, true that where such penalty ordered under Rule 19 of the Rulesis reversed by reason of the fact that the judgment on the basis of which it was given stands reversed, the Government must be allowed the opportunity of taking de novo disciplinary action against the delinquent officer/official as contemplated by the C.C.S. Rules. The Government will then be at liberty to take action under Rule 16 as advised and pass an appropriate order thereafter in accordance withlaw. In this case, the Government will have the same liberty (16). In the result, the petition succeeds and is allowed. The order dt. 3.9.93 is quashed. The petitioner will be entitled to all consequential benefits arising out of the quashing of the order of termination.