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2008 DIGILAW 2364 (RAJ)

Manful Singh v. State of Rajasthan

2008-10-18

R.P.VYAS

body2008
JUDGMENT 1. - Heard at admission stage. 2. The instant petition has been filed by the petitioner with the prayer that the order dated 13.06.2005 may kindly be quashed and set aside and the petitioner be reinstated in service. 3. The brief facts of the case are that the petitioner was initially appointed on the post of Patwari on 01.03.1979. 4. It has also been alleged that one Gurcharan Singh filed a false complaint against the petitioner regarding illegal demand for the purpose giving the copies of Jamabandi of his field and transferring the land in the name of Gurcharan Singh. 5. The petitioner averred in the writ petition that on the basis of complaint made by Gurcharan Singh, the trap was conducted by the Anti- Corruption Department. 6. The petitioner has also averred that after trial, the petitioner was convicted under the provisions of Prevention of Corruption Act vide judgment dated 21.04.2005. 7. The petitioner filed an appeal against the order of his conviction before this Court and this Court vide order dated 09.05.2005 suspended the sentence of the petitioner. After conviction of the petitioner the services of the petitioner have been terminated vide order dated 13.06.2005 10 (Annexure- 5). 8. The main submission of the learned Counsel for the petitioner is that since the conviction of the petitioner is not final as the sentences awarded to the petitioner have been suspended by this Court in criminal appeal, therefore, the order dated 13.06.2005 (Annexure-5) by which the services of the petitioner were terminated, is per se illegal and against the mandatory provisions of law. 9. There is no dispute on the point that the case under the provisions of Prevention of Corruption Act was registered against the petitioner and, after trial, through judgment dated 21.04.2005, the petitioner was convicted under the provisions of the Prevention of Corruption Act and there cannot be any dispute on the point that if a person is convicted under the provisions of Prevention of Corruption Act, 1988, the conduct of that person would fall within the definition of moral turpitude. There is no dispute on the point that by order dated 09.05.2005 (Annexure-4) the sentence of the petitioner was suspended by this Court. 10. That for the purpose of present controversy Article 311 (2)(a) of the Constitution of India is relevant which reads as under : "Article. 311(1).......... There is no dispute on the point that by order dated 09.05.2005 (Annexure-4) the sentence of the petitioner was suspended by this Court. 10. That for the purpose of present controversy Article 311 (2)(a) of the Constitution of India is relevant which reads as under : "Article. 311(1).......... (2) 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 imposed. 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; or...." 11. Thus, under Article 311 (2)(a) of the Constitution of India, the disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of misconduct on his part. The authority is to decide whether conviction demands the imposition of any penalty and if so, what penalty. For this purpose, the authority has to take into consideration the judgment of the criminal Court, the entire conduct of the civil servant, the gravity of the offence, the impact of the offence on the administration, whether the offence was of a technical or trivial nature, and the extenuating circumstances if any. This the disciplinary authority has to do ex parte and without giving a hearing to the concerned civil servant. 12. Action under Article 311 (2)(a) of the Constitution of India is to be taken only then the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311 (2) of the Constitution of India. The power has to be exercised "fairly, justly and reasonably". No hearing need be given while imposing the penalty after conviction on a criminal charge, but "the right to impose a penalty carries with it the duty to act justly". 13. The power has to be exercised "fairly, justly and reasonably". No hearing need be given while imposing the penalty after conviction on a criminal charge, but "the right to impose a penalty carries with it the duty to act justly". 13. Thus, if 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, in such a case, it is not necessary to give opportunity of hearing to that person or in other words in case a Government servant is convicted by a criminal Court, action can be taken under Clause (a) of second proviso to Article 311 of the Constitution of India for imposition of penalty. 14. It may further be mentioned here that second proviso to Article 311 of the Constitution of India, would apply only for imposition of major penalties, which is an exception of Article 311 (2) of the Constitution. 15. A question of importance has been raised in relation to Article 311 (2)(a) viz. after conviction by the lower Court, the concerned employee may appeal to a higher Court against his conviction and whether he can be dismissed from service after conviction during pendency of appeal or whether he can be dismissed immediately after conviction irrespective of his appeal or not ? 16. The Hon'ble Supreme Court in the case of Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, AIR 1995 SC 1364 has answered this question, Article 311 (2)(a) of the Constitution of India speaks of conduct which has led to his conviction on criminal charge. It does not speak of sentence or punishment awarded. The Hon'ble Supreme Court has ruled that the appropriate course in such cases would be to take action as soon as a Government servant is convicted of a criminal charge and not to wait for the appeal or revision against conviction. If, however, he is acquitted on appeal or other proceeding, the order can always be revised. If the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. If, however, he is acquitted on appeal or other proceeding, the order can always be revised. If the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The Hon'ble Supreme Court in the case of Nagoor Meera (Supra), disapproved the suggestion that the Government servant ought not to be dismissed till the appeal, revision or other remedies are over as that would mean continuing in service a person who has been convicted of a serious offence by a criminal Court. 17. The Hon'ble Supreme Court in the case of Nagoor Meera (Supra), has further held that merely because the sentence was suspended and he was released on bail, the conviction would not cease to be operative. As he was found guilty of corruption by a criminal Court, he could be dismissed from service; it would not be advisable to retain him in service. If his appeal succeeded, the matter could always be reviewed in such a manner that he suffered no prejudice. 18. Applying the above principle to the facts of the present case, when a person is convicted of a criminal charge involving moral turpitude, as in the present case is in such a case even no opportunity of hearing is required to be given and thus, in no manner, the order dated 13.06.2005 (Annexure-5) can be said to be illegal. 19. Thus, the law can be laid down in the manner that merely because the sentence was suspended by the higher Court and the petitioner was released on bail, the conviction would not cease to be operative and the appropriate authority before dismissing the services, need not wait till the decision of appeal. 20. For the reasons mentioned above, the present writ petition is dismissed at admission stage. No order as to costs.Petition dismissed. *******