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Madhya Pradesh High Court · body

2008 DIGILAW 1137 (MP)

RAM ABHILASH SHUKLA v. STATE OF MADHYA PRADESH

2008-09-11

R.S.JHA

body2008
Judgment ( 1. ) THE petitioner has filed this petition being aggrieved by the punishment of compulsory retirement imposed upon him by the impugned order dated 27-10-1999 and the order dated 16-3-2000 by which the appeal filed by him against the order of compulsory retirement has been dismissed. ( 2. ) THE brief facts leading to the filing of the present petition are that the petitioner, a forest guard, was suspended by order dated 3-6-1987 with effect from 4-5-1987 on account of his involvement in an incident which occurred on 24-9-1987 in which one Kedar was shot and killed by Kavi Kant with a 12-bore gun belonging to the petitioner. A criminal case was instituted against the petitioner and the said Kavi Kant and both of them were convicted by the Trial court for offences punishable under Section 302 read with Section 109 of the indian Penal Code. Additionally, the petitioner was also convicted under section 30 of the Arms Act. Subsequent to his conviction a notice was issued to the petitioner on 13-1-1992 and thereafter by order dated 5-2-1992 the petitioner was dismissed from service. ( 3. ) BEING aggrieved by the order of the Trial Court, the petitioner filed an appeal against the order of the Trial Court and by order dated 10-11-1994 passed by this Court in Criminal Appeal No. 1279/99 the conviction of the petitioner for offences under Sections 302 read with Section 109 of the Indian penal Code was set aside while his conviction under Section 30 of the Arms Act, not having been assailed by him, was affirmed. Thereafter, the petitioner filed applications before the respondent-Authorities on 28-11-1994 and 14-12-1994 requesting for being reinstated in view of the order passed by the High Court in his criminal appeal but the authorities rejected his request by communication dated 2-1-1995 and his appeal against the aforesaid rejection was also rejected by order dated 20-12-1996. ( 4. Thereafter, the petitioner filed applications before the respondent-Authorities on 28-11-1994 and 14-12-1994 requesting for being reinstated in view of the order passed by the High Court in his criminal appeal but the authorities rejected his request by communication dated 2-1-1995 and his appeal against the aforesaid rejection was also rejected by order dated 20-12-1996. ( 4. ) BEING aggrieved by the rejection of his request for reinstatement the petitioner filed a petition before the M. P. State Administrative Tribunal, jabalpur which was registered as O. A. No. 2611 of 1992 and was ultimately allowed by order dated 28-8-1998 quashing the order of rejection of his request and directing the authorities to reinstate the petitioner and thereafter if the authorities considered it proper and desirable, to place him under suspension and take a fresh decision on the petitioners representation after giving him due opportunity of hearing. In compliance of the order passed by the Tribunal the petitioner was reinstated on 6-3-1999 and was again placed under suspension on the same day and a notice dated 6-3-1999 was issued to him under the provisions of Rule 19 of Madhya Pradesh Civil Services (Classification, Control and appeal) Rules, 1966. The petitioner filed a reply to the aforesaid notice and thereafter the authorities after considering the same have passed the impugned order dated 27-10-1999 imposing a punishment of compulsory retirement upon the petitioner. The appeal filed by the petitioner against the order of compulsory retirement has also suffered dismissal by the impugned appellate order dated 16-3-2000. ( 5. ) BEING aggrieved by the aforesaid order of compulsory retirement the petitioner filed the present petition before M. P. State Administrative tribunal, Jabalpur, which has thereafter been transferred to this Court and is being decided herewith. ( 6. ) THE contention of the learned Counsel appearing for the petitioner is that the authority, while taking a decision under Rule 19, was required to apply its mind to the facts and circumstances of the case and take an appropriate decision thereon regarding the quantum of punishment, if any, to be imposed upon the petitioner and it could not have blindly punished the petitioner simply on the basis of his conviction under Section 30 of the Arms Act, specifically, when an offence under Section 30 of the Arms Act does not involve any moral turpitude on the part of the petitioner. It is also submitted that the authority, while taking the impugned decision did not follow the detailed procedure prescribed under the Rules of 1966 and did not afford any opportunity of hearing to the petitioner as envisaged by Rules 14 and 15 thereof. ( 7. ) PER contra, the learned Govt. Advocate, appearing for the respondents submits that it is an admitted fact that the petitioner has been convicted under Section 30 of the Arms Act and pursuant thereof has also undergone imprisonment of one month and in such circumstances, the competent Authority was of the opinion that a person who has been convicted in a criminal case cannot be retained in service and has therefore compulsorily retired the petitioner by taking a lenient view. It is further submitted that in accordance with the provisions of Rule 19 of the Rules and a Full Bench judgment of this Court in the case of Laxmi Narayan Hayaran Vs. State of M. P. and another, 2004 (4) M. P. H. T. 343 (FB) = 2004 (4) MPLJ 555 , the authority is not required to follow the detailed procedure as prescribed under Rules 14 and 15 of the Rules of 1966 nor is any opportunity is required to be given to the petitioner while passing under order under Rule 19 and, therefore, the contentions of the petitioner to the contrary deserve to be rejected. ( 8. ) I have heard the learned Counsel for the parties at length. ( 9. ) A bare perusal of Rule 19 of the Rules of 1966 indicates that the competent Authority is empowered to pass appropriate orders in respect of persons on whom a penalty has been imposed on conviction in a criminal charge. In the case of Laxmi Narayan Hayaran (supra), a Full Bench of this Court has held that while passing appropriate orders under Rule 19 of Rules of 1966 no opportunity need be given to the concerned employee, however, all these aspects may not deter us in the present case as the authorities have given an opportunity of hearing to the petitioner in view of the directions issued by the tribunal in O. A. No. 2611 of 1992, decided on 27-8-1998 and the authority has also duly taken into consideration the representation filed by the petitioner. ( 10. ( 10. ) THE only issue that needs to be examined in the present petition is as to whether the authority concerned has applied its mind to the facts and documents on record and the judgment of this Court in the criminal appeal filed by the petitioner and thereafter recorded a conclusion based on the aforesaid documents. ( 11. ) THE facts regarding the petitioners punishment and conviction under Section 30 of the Arms Act is not disputed by either of the parties appearing before this Court. From a perusal of the impugned order it is apparent that the authority has imposed a punishment of compulsory retirement on the petitioner on the basis of the fact that the petitioner has been convicted under section 30 of the Arms Act and while doing so, the authority has repeatedly stated that the petitioner has been convicted for his involvement in the heinous crime of murder as he had given his licensed twelve bore gun to Kavi Kant for the purposes of committing the murder of Kedar. This fact is evident from a perusal of the Paragraph 4 as well as the operative part of the impugned order imposing the punishment of compulsory retirement on the petitioner. ( 12. ) ON perusing the judgment of this Court passed in Criminal Appeal no. 1279/88, dated 10-11-1994, it is evident from a perusal of Paragraph 2 thereof that this Court has specifically recorded a finding that the conviction of the petitioner under Sections 302 and 309 of the Indian Penal Code was not justified and consequently, in Paragraph 4, this Court has set aside his conviction under the aforesaid sections and he has been acquitted of the charges under sections 302 and 309 of the Indian Penal Code but his conviction on the charges under Section 30 of the Arms Act was sustained as it was not challenged. The relevant parts of the judgment of this Court is in the following terms:- "2. We were taken through the evidence of the aforesaid eye-witnesses to show that complicity of Ram Abhilash in the case is not made out. There is some evidence to suggest that immediately after the murder Ram Abhilash was seen going with Kavi Kant on the outskirts of the village. This has been stated to by Sharad Pd. (P. W. 2 ). Other witnesses have not stated to that effect. There is some evidence to suggest that immediately after the murder Ram Abhilash was seen going with Kavi Kant on the outskirts of the village. This has been stated to by Sharad Pd. (P. W. 2 ). Other witnesses have not stated to that effect. The presence of appellant Ram Abhilash at the scene of the incident is not proved at all. In such circumstances merely the fact that his official gun was used for killing and that he had objected to the animals sacrifice at the bhairo temple which was the subject of discussion at the Panchayat when Kedar was murdered, shall, in our opinion, be wholly insufficient to bring home the charge under section 302 read with Section 109, IPC against Ram Abhilash. His conviction under Section 30 of the Arms Act has not been assailed. 4. In result, Cr. A. No. 11/89 presented by Kavi Kant fails and is hereby dismissed. Cr. A. No. 1279/88 filed by Ram Abhilash is partly allowed. His conviction under Section 302 read with Section 109, ipc and sentence of imprisonment for life are hereby set aside and he is acquired of that charge. His conviction on charge under section 30, Arms Act is hereby sustained. " ( 13. ) IN view of the judgment of this Court in the criminal appeal filed by the petitioner, it is established beyond doubt that the petitioner was not involved in the commission of the heinous offence of murder under Section 302 of the indian Penal Code nor was he, in anyway, involved in aiding or abetting the same under Section 109 of the Indian Penal Code. It is also clear that the petitioner was only found guilty of having contravened the conditions of the arms licence issued to him under the provisions of the Arms Act, 1959 and was, therefore, convicted and sentenced under Section 30 of the Arms Act for which he under went imprisonment for a period of one month. It is also clear that the petitioner was only found guilty of having contravened the conditions of the arms licence issued to him under the provisions of the Arms Act, 1959 and was, therefore, convicted and sentenced under Section 30 of the Arms Act for which he under went imprisonment for a period of one month. From a perusal of the impugned order of punishment dated 27-10-1999, it is evident that the Disciplinary authority while imposing a punishment of compulsory retirement has failed to take into consideration or appreciate in the proper perspective the judgment of this Court in the criminal appeal filed by the petitioner wherein it is clearly and specifically held that the petitioner was not involved in the commission of the offence under Section 302 read with Section 109 of the Indian Penal Code and to properly appreciate the impact of the fact that his conviction under that offence has been set aside. I am constrained to say so as the authority in the impugned order has repeatedly mentioned that the petitioner was involved in the commission of a heinous offence of murder by giving his gun to Kavi Kant to commit the murder of the deceased, Kedar, which is contrary to the finding recorded by this Court in the judgment in the criminal appeal filed by the petitioner. Had the authority simply taken into consideration the petitioners conviction under Section 30 of the Arms Act and his conduct regarding violation of the terms of the arms licence issued to him, the case would have been different. ( 14. ) IN the circumstances, I am of the considered opinion that the impugned order of compulsory retirement demonstrates total non-application of mind on the part of the Disciplinary Authority and, therefore, suffers from arbitrariness. That apart, as no reasonable or prudent person could have recorded a finding that the petitioner was involved in the commission of a heinous crime like murder after the acquittal of the petitioner under Sections 302 and 109 of the Indian Penal Code by this Court in the criminal appeal filed by the petitioner, the impugned order also suffers from arbitrariness and unreasonableness and accordingly deserves to be and is hereby quashed. ( 15. ( 15. ) FROM a perusal of the record it is apparent that the petitioner has already superannuated from service and, therefore, no useful purpose would be served in remitting the matter back to the authority for taking a fresh decision as that would result in undue hardship to the petitioner who has already retired and, therefore, it is directed that as a consequence of the quashment of the impugned order of compulsory retirement the petitioner would be deemed to have been in service till the date of his superannuation and would be entitled to revised pension and other retiral benefits by treating him to have been in service for his full tenure of service. However, looking to the fact that the petitioner was prosecuted in a criminal case and was ultimately convicted for an offence under section 30 of the Arms Act, he would not be entitled to any backwages but if any amount towards subsistence allowance has been paid to him, the same would not be recovered from him. ( 16. ) WITH the aforesaid observations/directions the petition filed by the petitioner stands allowed. In the facts and circumstances of the case there shall be no order as to costs.