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2004 DIGILAW 1085 (PAT)

Nawal Kishore Razak v. State of Bihar

2004-10-06

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ORDER 1. Heard learned senior counsel Shri Ganesh Prasad Singh on behalf of the petitioner and the learned Counsel for the State. 2. This writ application has been filed for quashing the order dated 16.12.2003, at Annexure 4, terminating the services of the petitioner. The impugned order has been passed in consequence of the order dated 23.12.2002 in Sessions Trial No. 45/99, wherein the petitioner has been convicted and sentenced to imprisonment for two years for an offence under Section 498A read with Section 34 of the Penal Code. The petitioner having preferred Cr. Appeal No.10 of 2003 has been enlarged on bail therein and the appeal remains pending before the District and Sessions Judge, Patna. 3. The petitioner is an employee of the State Government and was married in the year 1997. Naubatpur PS Case No. 51 of 1998 came to be instituted by the father-in-law of the petitioner against the petitioner and his family members under Sections 323, 328, 307, 498A read with Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. This subsequently came to be registered as Sessions Trial No. 45 of 1999. The petitioner and other accused, on trial, were acquitted of the charges under Sections 323, 328 read with Section 34 of the Indian Penal Code and Sections 3 & 4 of the Dowry Prohibition Act. They were however convicted under Section 498A read with Section 34 of the Penal Code. 4. Learned Senior Counsel Shri Ganesh Prasad Singh assailed the impugned order as being arbitrary and contrary to law. In same limb of argument it was submitted that the order of punishment was grossly disproportionate to the offence charged. The contention being that that Article 311(2) a itself visualised three different kinds of punishments, i.e. dismissal, removal and reduction in rank. This was co-related to the conduct of the government servant which led to his conviction on a criminal charge. It was submitted that that the exercise of power under this provision had necessarily to be regulated with reference to the conduct of the delinquent which led to his conviction and it was in the background of the same that the Government had to decide the nature of the penalty proposed to be imposed. It was submitted that that the exercise of power under this provision had necessarily to be regulated with reference to the conduct of the delinquent which led to his conviction and it was in the background of the same that the Government had to decide the nature of the penalty proposed to be imposed. The impugned order at Annexure 4 was assailed as being completely arbitrary inasmuch as it referred to the institution of a case against the petitioner under such provisions of law of which the petitioner had been absolved and not convicted. Thus, on both grounds it was submitted that the impugned order was bad and was liable to be set aside. Learned Senior Counsel placed reliance upon a judgment of the Supreme Court reported in AIR 1985 SC 1416 (Union of India Vs. Tulsi Ram Patel). Placing reliance upon paragraph 62 of the judgment, it was submitted that the paramount consideration for application of the second proviso would be whether the conduct of the government servant was such that he deserved 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 proviso of Article 311 would not come into operation. 5. A counter affidavit has been filed on behalf-of the State. The stand taken there in being that the petitioner having been convicted by a court of law, the order of termination is valid. Reliance was sought to be placed upon the judgment of the Supreme Court in AIR 1995 (SC) 1364 [Deputy Director of Collegiate Education (Administration) Vs. Nagoor Meera]. On basis of the said judgment it was submitted that the impugned order called for no interference until the conviction is set aside by an appellate court. Should the petitioner succeed in appeal, the matter could always be reviewed in such manner that he suffers no prejudice. 6. It would be useful to set out below Article 311(2) a of the Constitution of India, on which the controversy revolves. Should the petitioner succeed in appeal, the matter could always be reviewed in such manner that he suffers no prejudice. 6. It would be useful to set out below Article 311(2) a of the Constitution of India, on which the controversy revolves. "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 not 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 on a criminal charge;" 7. This court finds that the aforesaid provision vests in the Government the power to pass orders of dismissal, removal or reduction in rank on the ground of conduct which led to the conviction of the Government servant on a criminal charge. The essence of the matter would be the nature of the conduct which led to conviction. This would be the basis for the government to decide which of the three penalties would suitably be awarded in the given facts and circumstances of a case. It could always be possible that based on assessment of the conduct the Government may come to the conclusion that neither of the three penalties was required to be imposed, and a lesser punishment may suffice. In such a situation, Article 311 would have no operation. This Court therefore comes to the conclusion that for exercise of powers under Article 311(2) a, it is essential that the order should display application of mind by the government to the nature of the conduct and then corelate the same with the category of punishment required. In other words, the order must display application of mind. This is necessary given the statutory provision dispensing with the need for any enquiry in the circumstances. 8. The aforesaid issue came up for consideration before the Supreme Court in the judgment reported in 1985(2) SCC 358 (Shanker Dass Vs. In other words, the order must display application of mind. This is necessary given the statutory provision dispensing with the need for any enquiry in the circumstances. 8. The aforesaid issue came up for consideration before the Supreme Court in the judgment reported in 1985(2) SCC 358 (Shanker Dass Vs. Union of India & Anr). Speaking for the Court, Chief Justice Chandrachud (as he then was), in paragraph 7 of the judgment proceeded to hold: "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 an 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." Thus the Government cannot act whimsically or in a huff, without applying its mind to the penalty which could appropriately could be imposed in a giver factual situation. 9. Subsequently, considering the same issue in AIR 1989 SC 1185 (Union of India Vs. Parma Nanda) relying upon the Tulsi Ram Patel case (supra) the Supreme Court held that the adequacy of the penalty imposed has to be considered in the light of the conviction and sentence inflicted on the person. It the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge the courts would have to render substantial justice by either remitting the matter to the competent authority for reconsideration or by itself substitute one of the penalty provided in clause (A). An extract from the Tulsi Ram Patel case (supra) relied upon in the Parma Nand case (supra) in this regard, would be relevant:- "Where a disciplinary authority comes to know that a government servant 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 so what that penalty should be. 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 court's 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. Thus, in Shankar Dass Vs Union of India ( AIR 1985 SC 772 ) this court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case." 10. The judgment in S. Nagoor Meera case (Supra), relied upon by the learned Counsel for the respondents does not change course from the legal proposition enunciated in the above judgments. This judgment is only relevant for the proposition that conviction in a criminal case would be sufficient for imposing either of the three penalties or even other wise and that the mere pendency of an appeal or grant of bail would not be sufficient justification not to impose the same. This judgment is only relevant for the proposition that conviction in a criminal case would be sufficient for imposing either of the three penalties or even other wise and that the mere pendency of an appeal or grant of bail would not be sufficient justification not to impose the same. The matter could always be reviewed in pursuance of the order of appellate Court. This Court is afraid that the preposition in the said judgment has no application to issues involved in the present case. There can be no dispute with this legal proposition enunciated in the S. Nagoor Meera case (Supra) judgment. The very same judgment in paragraph 9 reiterates the law as hid down in the Shankar Dass case (Supra). 11. Applying the ratio laid down in the aforesaid judgments this Court finds that the impugned order at Annexure 4 does not discuss the conduct which led to conviction in co-relation to the penalty imposed. Even if, the recitals in the impugned order be construed as sufficient, it is affected by apparent arbitrariness. It imposes the punishment on conviction in a criminal prosecution with reference to the charges against the petitioner of which he stood absolved except for 498A read with Section 34 of the Penal Code. Could it be said that his conviction under Section 498A of the Penal Code was a conduct which necessiated the extreme penalty of dismissal with its attendant consequences. This Court, in view of the law in this regard as discussed hereinabove arrives at the conclusion that the impugned order is bad in law, being arbitrary in so far as it does not consider the conduct which led to conviction before corelating it to the punishment. The punishment imposed is suggestive of excessive harshness and disproportionate. The impugned order is accordingly set aside. 12. In accordance with the laws reiterated in 2002 (10) SCC 425 (District Judge, Bahraich & Anr. Vs Munjar Prasad) with regard to the limitations of the writ court to interfere with the quantum of punishment imposed, the matter would have to be remanded back to the authorities to take a fresh decision in accordance with law with due application of mind to the conduct which led to conviction and the appropriate penalty under Article 311(2) a or otherwise to be imposed. 13. The writ application therefore succeeds and is allowed.