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2005 DIGILAW 492 (GUJ)

J. A. KHIMSURIA IMV v. STATE OF GUAJRAT

2005-07-19

P.B.MAJMUDAR

body2005
( 1 ) THIS is a thoroughly misconceived petition filed by the present petitioner, who has been convicted in a corruption case by the Special Court and even after his conviction he wants to continue in service. By filing this petition, the petitioner has challenged the legality, validity and propriety of the order dated 16-7-2005, which is at Annexure-A to this petition. The Deputy Secretary, home Department, by the aforesaid order dismissed the petitioner from service by resorting to Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said order of dismissal is passed in view of the fact that the petitioner is convicted in an anti-corruption case being Special Case No. 11/1992. The petitioner is convicted by the Sessions Court by inflicting one years simple imprisonment and fine of Rs. 1500/- by order dated 15-10-2004. ( 2 ) IN view of the aforesaid order, the petitioner was subjected to show cause notice dated 31st March, 2005. However, said show cause notice is not produced on record and only the reply given to the said show cause notice is produced on record. When Mr. Joshi is confronted with this aspect, he has requested the Court to take said show cause notice on record. Accordingly, show cause notice dated 31st March, 2005, is taken on record. As per the aforesaid show cause notice given to the petitioner, the petitioner was asked to show cause as to why he should not be dismissed from service in view of the fact that he is convicted in a serious offence. The petitioner, thereafter, gave a reply to the said show cause notice on 11th April, 2005, which is finding place at page 21, Annexure-C. The petitioner has pointed out in the said reply that he has not committed any offence and he is wrongly convicted. The petitioner also pointed out in his reply that a full-fledged departmental inquiry is required to be held. The petitioner has also pointed out in his reply that against the conviction he has already filed an appeal and it is admitted and till the said appeal is decided by the High Court, the petitioner cannot be removed from service. After considering the reply of the petitioner, impugned order of dismissal is passed by the authority, which is under challenge in this petition. ( 3 ) MR. After considering the reply of the petitioner, impugned order of dismissal is passed by the authority, which is under challenge in this petition. ( 3 ) MR. PREMAL Joshi, learned advocate for the petitioner, vehemently submitted that the department has committed an error in dispensing with the departmental inquiry as the department was required to hold full-fledged departmental inquiry as contemplated under rule 9 of the Bombay Civil Services (Discipline and Appeal) rules, as according to him, before imposing any major penalty regular departmental inquiry is contemplated. Mr. Joshi further submitted that alternatively the authority should have considered whether it is a fit case for dismissing the petitioner or any other lesser penalty can be inflicted on the petitioner. It is also submitted by him that the department should have considered the facts and circumstances of the case and thereafter appropriate order should have been passed, as deemed fit. He also submitted that before passing the impugned order, no consultation is made with GPSC and according to him such consultation is necessary before imposing a major penalty. ( 4 ) LEARNED AGP, Mr. Desai, who is appearing on advance copy has submitted that when the petitioner is already convicted in an offence relating to moral turpitude, he can be removed from service. To substantiate his say, Mr. Desai has relied upon the judgement of the Apex Court in K. C. Sareen v. C. B. I. , Chandigarh reported in AIR 2001 SC 3320 , wherein it has been held by the Apex Court in paragraph 11, relevant portion of which is as under :"when a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction. " ( 5 ) MR. DESAI, learned AGP has further relied upon the decision of the Full Bench of this Court in P. D. Waghela and Ors. Vs. G. C. Raiger, Deputy I. G. P. and Ors. , reported in 1994 (1) GLR 240 , wherein it is held in paragraph 21 as under :"21. Accordingly we express our opinion on the question coming up for our consideration as follows : 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. " ( 6 ) IN reply to the argument of Mr. " ( 6 ) IN reply to the argument of Mr. Joshi that before passing said order, Gujarat public Service Commission should have been informed, Mr. Desai, learned AGP has pointed out that at the time of passing the aforesaid order, the Secretary has already stated that copy of the order is sent to the Gujarat Public Service commission in view of the confidential letter of the commission dated 4-7-2005. Mr. Desai submitted that in view of the letter of GPSC, ultimately, the order which is passed is also communicated to the GPSC and it cannot be said that there is no consultation. ( 7 ) I have heard Mr. Joshi at great length. I find that there is no substance in any of the contentions raised by Mr. Joshi. In spite of the fact that point involved in this matter is well settled by the judgement of the Supreme Court as well as by the judgement of the Full Bench of this Court Mr. Joshi went on relying upon the judgement of learned Single Judge of this Court passed in Special Civil application No. 4935/1999. In the aforesaid case, this Court found that when the sentence is kept suspended, no resort can be made to Rule 65 by the Corporation for dismissing the petitioner from service without holding enquiry, as the petitioner in that case was an employee of the Corporation. ( 8 ) IT is required to be noted that simply because the petitioner is enlarged on bail or the sentence is suspended can never be considered as a ground by which it can be said that even the finding of conviction is also stayed or order of conviction is also stayed. The fact remains that the petitioner as on today is a convicted person and though the sentence is suspended the conviction order still remains. ( 9 ) IN spite of the fact that law on this subject is settled by judgement of the full Bench of this Court as well as by the judgement of the Supreme Court, still such petitions are filed regularly wherein a person, after being convicted in a serious offence, is challenging the dismissal order on the ground that since the conviction order is suspended, without holding full-fledged inquiry employee cannot be removed from service. It is for the concerned APP, who is in-charge of the criminal matter to highlight this aspect before the concerned Court and at the time of granting bail such point can be brought to the notice of the concerned Court so that in a service matter the point which is now pressed into service that, since sentence is suspended no penalty can be imposed by the department without holding full-fledged departmental inquiry, can be appropriately dealt with. Once a person is convicted in a corruption case or any such serious offence, the department is not required to hold inquiry at all. In fact, to retain a person in service after conviction would go contrary to the provisions of Article 311 of the Constitution of India. Till the petitioner is acquitted finally, the order of conviction recorded by the first Court stands and simply because the Criminal Appeal is admitted or sentence is suspended, the conviction cannot be said to be wiped out. Argument of Mr. Joshi that inspite of conviction regular departmental inquiry is required to be held for imposing major penalty as provided under Rule 9, on face of it, is ridiculous argument and absolutely unsustainable in view of the law settled by the Apex Court as well as by this Court. It is required to be noted that in view of the conviction of an employee it is not obligatory on the part of the department to hold a departmental inquiry. However, in the instant case, show cause notice was issued to the petitioner and after hearing him dismissal order is passed. When the petitioner is involved in a serious offence and when he is convicted by one court, it is the duty of the department to see that such employee is removed from service at once. At the time of considering aforesaid question of removing an employee from service, of course the authority can consider the gravity of offence involving moral turpitude and can always act on the basis of conviction for the purpose of passing dismissal/removal order. Under the circumstances, as per the service rules and as per the provisions of Article 311 of the constitution of India, it is not obligatory on the part of the department to hold full-fledged inquiry and upon conviction of an employee, the department should immediately pass appropriate order in accordance with law without waiting for indefinite period. Under the circumstances, as per the service rules and as per the provisions of Article 311 of the constitution of India, it is not obligatory on the part of the department to hold full-fledged inquiry and upon conviction of an employee, the department should immediately pass appropriate order in accordance with law without waiting for indefinite period. ( 10 ) CONSIDERING the above position and in view of the conviction of the petitioner in a corruption case he cannot be retained in service. Therefore, I do not find any substance in any of the points raised by Mr. Joshi. Accordingly, this petition is rejected. ( 11 ) IT is clarified that in case the petitioner is acquitted in criminal appeal, on such acquittal he shall be reinstated in service with continuity and other such benefits as the order of dismissal is based solely on conviction of the petitioner. ( 12 ) COPY of this order may be sent to the Chief Secretary so that he can inform all the departments about the law on the subject. .