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2001 DIGILAW 136 (JK)

Bharat Singh v. Union Of India

2001-07-13

T.S.DOABIA

body2001
1. The Chief Judicial Magistrate, Jammu, found the petitioner guilty of having committed an act under Section 409 of the Penal Code for having misappropriation a sum of Rs. 9417.75 and sentenced him to undergo six months imprisonment and to pay a finance of Rs. 1000/-. This conduct on the basis of which he was convicted, was found to be sufficient to render the retention of the petitioner in the National Seeds Corporation Ltd., undesirable. In addition to this, a departmental enquiry was also held. In this enquiry., it was found that the petitioner had embezelled a sum of Rs. 4039.20. Taking into consideration the findings of the Enquiry Officer and also the order of conviction passed by the Chief Judicial Magistrate, the services of the petitioner were brought to an end. He was dismissed from service. An order to this effect was passed under Rule 11 of the Central Civil Services (Classification Control and Appeal) Rules, 1965. Petitioner was held not entitled to gratuity and was also deprived to the benefit of employers contribution towards Provident Fund. This order was passed on 26th May, 1977. 2. The petitioner had preferred an appeal against the order of conviction. The petitioner was acquitted. The judgment of acquittal was recorded on 26-12-1996 by the court of Session. After this, the petitioner submitted an application before the respondent Corporation. He pointed out as he has been acquitted of the charge, therefore, he should be reinstated. As nothing material happened, he approached this Court. He submits that he is entitled to reinstatement because the very basis which led to his dismissal from service has ceased to exist. 3. The stand taken by the respondents is that the petitioner was dismissed from service not only on the basis of conviction but also in pursuance of an enquiry held by the respondent employer. It is stated that the petitioner has been found guilty of the charges. He was found to have misappropriated a sum of Rs.4039.20. It is accordingly submitted that even if that part of order which deals with taking into consideration the factum of conviction, is ignored, even then, the remaining order based on dismissal in consequence of departmental enquiry would survive the challenge made by the petitioner. 4. He was found to have misappropriated a sum of Rs.4039.20. It is accordingly submitted that even if that part of order which deals with taking into consideration the factum of conviction, is ignored, even then, the remaining order based on dismissal in consequence of departmental enquiry would survive the challenge made by the petitioner. 4. Before going into the controversy, it would be apt to notice one thing that when a judgment of conviction is recorded, it is not the ultimate order which is passed by the court which is relevant but it is the conduct which is to be taken note of. Such a view was expressed by the Punjab & Haryana High Court in the case reported as Om Parkash Vs. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala, AIR 1973 Punj 1. The aforementioned view of Punjab and Haryana High Court received a seal of approval from the Supreme Court of India in the case reported as AIR 1975 SC 2216. The Divisional Personnel Officer Southern Railway and another Vs. T.R. Challappan. Therefore, what was required to be seen when initial order was passed, was not the mere fact that the petitioner stood convicted but what was required to be seen was his conduct. This aspect of the matter was, however, not taken note of by the respondent employer. However, this may not put an end to the controversy. The other argument which has been pressed into service is that the petitioner was also found guilty in a departmental enquiry, therefore, that part of order requires to be gone into. 5. The limited argument that if several matter are taken into consideration and ultimately some of the matters are found to be irrelevant or legally sustainable, then that is not a ground for upsetting or quashing the order of punishment. See AIR 1969 SC 966 Railway Board Vs. Naranjan Singh. Therefore, the limited argument that even if that part of order which is based on conviction is ignored, even then the order of punishment can be sustained is required to be gone into. 6. In this regard, it would be apt to notice that a departmental enquiry was conducted. The petitioner was found to have misappropriated a sum of Rs. 4039.20. A show cause notice was issued to the petitioner. In the department enquiry, there was a proposal to remove the petitioner from service. 6. In this regard, it would be apt to notice that a departmental enquiry was conducted. The petitioner was found to have misappropriated a sum of Rs. 4039.20. A show cause notice was issued to the petitioner. In the department enquiry, there was a proposal to remove the petitioner from service. He was, however, not removed but was dismissed from service. This was most probable on account of additional factor that the petitioner stood convicted. Therefore, the order of punishment whereby the petitioner has been dismissed cannot be sustained because in the show cause notice, the punishment which was sought to be imposed was one of removal. This is a lacuna based on legal technicalities but in service jurisprudence it is only these procedural lacunas which come to the rescue of the delinquents, on merits, this Court is not to act as a Court of appeal. If on the basis of lacuna, the order of punishment becomes bad then the delinquent becomes entitled to relief, then this cannot be denied. The position in this case is similar. However, at this stage, some of the decisions on which reliance is being placed by respondents are being adverted to. Roshan Lal Ahuja Vs. Dr. SC Jain and others, 420 Supreme Court Service Rulings Vol. 7, is a decision where order of dismissal was held to be proper as the delinquent was not absolved from moral turpitude. The other decisions which have been relied upon are for the proposition that the petitioner has come to this Court belatedly, there fore, delay and laches would come in his way. These decisions are:- (i) A. Hamsaveni and other Vs. State of Tamil Nadu and another, 415 Supreme Court Service Rulings Vol. 9 (ii) Ratam Chandra Sammant & Ors. Vs. The Union of India & Ors., 418 Supreme Court Service Rulings Vol. 9, (iii) Bhoop Singh Vs. Union of India, Air 1992 SC 1414, (iv) Jagdish Narain Maltia Vs. The State of Bihar and others, 343 Supreme Court Service Rulings Vol. 6 and (v) Bhoop Singh Vs. Union of India and others, 327 Supreme Court Service Rulings Vol. 6. 7. So far as the above argument is concerned, I am of the opinion that there is no delay and laches in this case. The State of Bihar and others, 343 Supreme Court Service Rulings Vol. 6 and (v) Bhoop Singh Vs. Union of India and others, 327 Supreme Court Service Rulings Vol. 6. 7. So far as the above argument is concerned, I am of the opinion that there is no delay and laches in this case. The petitioner, no doubt, was dismissed from service on 27th May, 1977, he could not have got any effective relief till he was acquitted. The judgment of acquittal, as indicated above was passed on 26th Dec. 1996. Therefore, he moved the respondent authorities seeking his reinstatement. When he was not allowed the relief, he approached this Court. Therefore, to say that delay would stand in his way, is an argument which cannot be accepted. This is because, as indicated above, the petitioner could have move this Court only after his conviction was set aside by the court of appeal. Earlier to this he could not have got any effective relief from the Court. It was only after when the judgment of acquittal was recorded, he moved the respondents for reinstatement. As there was in action on the part of respondent employer, therefore, he was well within his rights to approach this Court. 8. As indicated above, the petitioner stands dismissed on the basis of conviction and also on the basis of departmental enquiry. Even if it be presumed that on the basis of departmental enquiry, the petitioner could be dismissed, then he should have been served with a notice to show cause as to why he should not be dismissed on the basis of the enquiry. 9. The learned counsel for the respondents on the basis of decisions reported as Shayamlal Vs. State of Uttar Pradesh and another, 480 Supreme Court Service Rulings, Vol. 18 and The State of Bombay Vs. Suaubhagchand M. Doshi, 547 Supreme Court Service Rulings, Vol. 7, has urged that basically there is no difference between removal and dismissal, and therefore, even if the show cause notice was issued for removal, the petitioner could be dismissed. 10. It be seen that the aforesaid two decisions on which reliance is being placed only bring out a distinction between what is meant by removal and dismissal. These are not the authorities for the proposition that if show cause notice is given for removal, the punishment of dismissal can be imposed. 11. 10. It be seen that the aforesaid two decisions on which reliance is being placed only bring out a distinction between what is meant by removal and dismissal. These are not the authorities for the proposition that if show cause notice is given for removal, the punishment of dismissal can be imposed. 11. In addition to this, it be seen that on account of the judgment of conviction, the petitioner was deprived of gratuity and also from employers contribution toward the Provident Fund. Such are the consequence enumerated in paras 6 and 7 of the order impugned in the writ petition. As the order of conviction is no longer in existence, therefore, the petitioner becomes entitled to gratuity and contribution towards the Provident Fund which is made by the employer. Therefore, the petitioner is right in his submission that the order of dismissal which is based on the show cause notice which mentions punishment of removal deserves to be set aside. The question arises as to what relief should be allowed to the petitioner. 12. It be seen that after the judgment of acquittal was passed in favour of the petitioner, he approached the respondent authorities calling upon them to reinstate him. The respondents, however, did not take notice of the effect of the order of acquittal; they also did not take notice of the fact that they had given only a notice for removal from service to the petitioner. Therefore, on account of the failure on the part of respondents to properly appreciate the prayer made by the petitioner for reinstatement after the judgment of acquittal, the petitioner is held entitled to back wages with effect from the date, notice calling upon the respondents to reinstate him was served by the petitioner on the respondent. In case, the petitioner was under suspension when the initial order was passed, then for the suspension period, he would be paid subsistence allowance also. The fact that the petitioner has remained out of service and the fact that he was suffered lot of mental agony during this period, therefore, it would be apt to allow him some compensation. This is fixed at Rs. 10,000/-. 13. This petition is accordingly disposed of with a direction that the petitioner shall stand reinstated. He would enjoy the same status as he was enjoying when order of dismissal was passed. This is fixed at Rs. 10,000/-. 13. This petition is accordingly disposed of with a direction that the petitioner shall stand reinstated. He would enjoy the same status as he was enjoying when order of dismissal was passed. The petitioner shall, however, have to show cause as to why he should not be removed from service, unless a fresh show cause notice for different punishment is issued. The respondents would examine the cause to be shown by the petitioner and would thereafter pass an appropriate orders within a period of two months from the date, the cause is shown by the petitioner. The observations made with regard to the monetary relief to the petitioner would be governed in the manner indicated above. Disposed of as such.