Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 711 (PNJ)

Mangal Singh v. Punsup

2006-02-27

S.S.NIJJAR, S.S.SARON

body2006
Judgment 1. The petitioner is an employee of the Punjab State Civil supplies Corporation (PUNSUP for short) where he was working as pdh. During his service, a criminal case for the offences under Sections 323/325/148/149 IPC was registered against him on 8.10.1998. After trial, he was convicted on 19.2.2001 by the learned Judicial Magistrate, mansa, for the offences under Sections 323/325/34 IPC and sentenced to undergo ri for one year and fine of Rs 100/-. The appeal filed by the petitioner was dismissed by the learned Additional Sessions Judge, Mansa on 1.12.2001. 2. The petitioner then filed a criminal revision No.1809 of 2001 in this court which was admitted on 8.2.2002 and the sentence awarded to him has been suspended. In this petition under Articles 226/227 of the Constitution of india, the petitioner assails the order dated 5.12.2001 (Annexure P4)passed by the District Manager, PUNSUP, Mansa (respondent No.3)dismissing him from service on account of his conviction in the criminal case. A further challenge has been made to the order dated 10.1.2003 (Annexure P5) whereby the Managing Director, PUNSUP, chandigarh (respondent No.2) has dismissed his appeal against the order dated 5.12.2001 (Annexure P4 ). 3. We have heard learned counsel for the parties. Learned counsel for the petitioner submits that the action of the respondents in dismissing the petitioner from service on the ground of his conviction in a criminal case, is in gross violation of the Punjab Civil service Rules and in any case the mere conviction in the criminal case does not warrant dismissal from service of the petitioner as it is not a moral turpitude. Learned counsel for the respondents, however, submits that the writ petition is premature as an appeal is pending before the appellate committee. Besides, it is contended that the petitioner, on his conviction in a criminal case, is to be dismissed from service in terms of the punjab government instructions. 4. After giving our thoughtful consideration to the matter, we are of the view that an order of dismissal from service simply because of conviction on a criminal charge without reference to the conduct of the petitioner which led to his conviction, cannot be sustained. 4. After giving our thoughtful consideration to the matter, we are of the view that an order of dismissal from service simply because of conviction on a criminal charge without reference to the conduct of the petitioner which led to his conviction, cannot be sustained. A perusal of the impugned orders Annexures P4 and P5 would show that the conduct which led to the conviction of the petitioner has not been taken into consideration while passing the impugned orders and the same have been passed only because of his conviction in the criminal case. A Full bench of this Court in the case of Om Parkash V/s. The Director Postal services (Posts and Telegraphs Deptt) and ors AIR 1973 (Pandh) 1, has held as follows:- "for the foregoing reasons, it is held that:- (i) the departmental punishment of removal or dismissal from Government service is not an essential and automatic consequence of conviction on a criminal charge; (ii) to (iv) xx xx xx (v) the liability to be departmentally punished for conduct which has led to the conviction of the employee does not attach to the conviction, but attaches to the original conduct (misconduct) which constituted the offence of which the official has been convicted (vi) to (xi) xx xx xx (xii) an order of dismissal or removal or for compulsory retirement can be passed under Rule 19 (i) (without conforming to the procedure prescribed in Rules 14 to 18) not on the basis of the conviction, but only if the competent authority finds that the relevant misconduct of the concerned Government servant renders his further retention in public service undesirable; and (xiii) xx xx xx" Besides, in Union of India V/s. Tulsi Ram Patel AIR 1985 SC 1416, the Supreme Court held as follows:- "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. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servants conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the government servant concerned by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant concerned and, therefore, it is not mandatory to impose any of these major penalties. " 5. In Shankar Dass V/s. Union of India and anr (1985) 2 SCC 358, the appellant who was a Cash Clerk, was prosecuted under section 409 ipc on the charge of breach of trust in respect of a sum of Rs 500/-. He repaid the amount and pleaded guilty to the charge. He was convicted for the offence under Sec.409 IPC. However, the Magistrate found him to be a victim of adverse circumstances and released him on probation. In any case, on account of his conviction, the government dismissed him from service summarily. His writ petition was allowed by a learned Single judge of the High Court holding that by reason of Sec.12 of the probation of offenders Act, the employee could not be dismissed without affording a reasonable opportunity of hearing under Article 311 (2) of the constitution. 6. The Division Bench, however, allowed the governments LPA. In appeal, the Supreme Court held that the penalty of dismissal from service imposed on the employee was whimsical. It was further observed as follows:- "it is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power, has to be exercised fairly, justly and reasonably. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". 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 his 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. " 7. Therefore, the conduct of the employee which led to his conviction, is to be seen in the facts and circumstances of each case and whether such conduct would entail imposition of punishment of dismissal of service. This apparently not having been done in the case in hand, the writ petition is liable to be allowed. For the foregoing reasons, the writ petition is allowed and the impugned orders dated 5.10.2001 (Annexure P4) and 10.1.2003 (Annexure p5) are quashed and the respondents shall carry out fresh consideration process and examine the conduct of the petitioner which led to his conviction and consider whether any punishment is warranted in the circumstances and if so, what punishment would be commensurate with the misconduct. 8. The quashing the impugned orders shall, however, not entitle the petitioner to any monetary benefits which shall depend on the fresh consideration that is to be carried out by the respondents.