Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 1201 (RAJ)

Likhma Ram v. State of Rajasthan

2011-06-06

GOVIND MATHUR

body2011
Hon'ble MATHUR, J.—The petitioner, an Upper Division Clerk, working with respondent suffered a conviction for the offences punishable under Sections 324, 325/34 and 341 Indian Penal Code under the judgment dated 15.7.2003 passed by the Court of Chief Judicial Magistrate, Pali. The conviction stood affirmed by the appellate court, however, the revisional court while affirming the conviction extended benefit of probation as per section 4 of the Probation of Offenders Act, 1958 vide judgment dated 8.12.2004. 2. The disciplinary authority of the petitioner by an order dated 12.8.204 dismissed him from service while exercising powers conferred upon him as per Rule 19(i) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as "the Rules"). The Rule 19(i) of the Rules provides that notwithstanding anything contained in Rules 16, 17 and 18, where a penalty is imposed upon a government servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and pass such orders as it deems fit. The provisions of Rule 19 carves out certain exceptions to the regular procedure prescribed under Rules 16, 17 and 18 for adjudicating alleged misconduct of a government servant. 3. The argument advanced to challenge the order of dismissal dated 12.8.2004 is that the disciplinary authority as per Rule 19(i) of the Rules is required to consider all the circumstances of the case, wherein on basis of the conduct a government servant suffers conviction. On such consideration, the disciplinary authority then should exercise its discretion to pass appropriate order, but in the instant case no such consideration was made and the disciplinary authority just on the count of recording conviction, dismissed the petitioner. It is urged that the power exercised by the disciplinary authority is not consonance with the spirit of provisions concerned and the entire process is completed mechanically. 4. The respondents in their reply tried to justify their action with assertion that "the services of petitioner was terminated vide order dated 12.8.2004 as he was found guilty for the offences under Section 324/341, 325/34 and 341 IPC and a sentence of two years imprisonment and fine Rs. 1000/- was awarded by the Chief Judicial Magistrate, Pali. 4. The respondents in their reply tried to justify their action with assertion that "the services of petitioner was terminated vide order dated 12.8.2004 as he was found guilty for the offences under Section 324/341, 325/34 and 341 IPC and a sentence of two years imprisonment and fine Rs. 1000/- was awarded by the Chief Judicial Magistrate, Pali. The petitioner has availed the statutory remedy against the order of sentenced before the Sessions Judge, Pali by way of filing an appeal and before the High Court by way of filing Revision petition. The conviction of the petitioner for the offence under Section 341, 323, 325/34 of IPC were maintained by the Hon'ble Rajasthan High Court while deciding the revision petition filed by the petitioner. Therefore, as per the provisions of Section 19 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958 the services of petitioner are liable to be dismissal from service. Therefore the services of the petitioner were rightly dismissed." 5. From the averments contained in reply, prima facie it appears that the order impugned was passed ipse-dixit on conviction of the petitioner. Looking to this position, during the course of hearing an opportunity was granted to counsel for the respondents on 7.4.2011 to disclose the consideration made and recorded, if any, while examining case of the petitioner. After seeking instructions from the respondents it was stated by the counsel representing the respondents that as per record the dismissal of the petitioner is based on conviction only and no other circumstances was taken into consideration. Taking into consideration the fact so stated, I am adjudicating the cause involved in this petition for writ. 6. Rule 16 of the Rules satisfies the constitutional need of adhering the doctrine of reasonable opportunity while examining conduct of a civil servant who may be subjected to the penalty of dismissal, removal or reduction in rank. Rule 19 is exception to the doctrine aforesaid upto a great extent and i.e. in consonance to the provisions of proviso (a) of Article 311(2) of the Constitution of India. Rule 19(i) empowers the disciplinary authority to pass an appropriate order after taking into consideration all the circumstances relating to the conduct of a government servant that led to his conviction. Rule 19(i) empowers the disciplinary authority to pass an appropriate order after taking into consideration all the circumstances relating to the conduct of a government servant that led to his conviction. The point requires notice here is that the disciplinary authority while considering case of a government servant who has been convicted is required to examine circumstances relating to the conduct of such government servant, and mere the fact of recording conviction is not enough to penalise a government servant. It is the conduct i.e. to be examined even while exercising powers under Rule 19 of the Rules. This required is founded on the reason that it is the conduct i.e. material for efficiency of service and if conduct of a government servant is not befitting then he should be dealt with accordingly. If recording of conviction itself would have been sufficient to dismiss, remove or reduce in rank, a government servant then rule making authority could have carved out the exception in very straight manner by saying that notwithstanding anything contained in Rules 16, 17 and 18 a government servant on being convicted for a criminal charge, the disciplinary authority may pass such order as it deem fit. However, existing position of law is quite different. The thrust of the existing provisions is to satisfy the doctrine of reasonable opportunity in absolute, even in the cases where the regular inquiry is dispensed with due to the circumstances referred in sub-rule (i) of Rule 19 of the Rules. In a case where a government servant is convicted, the disciplinary authority is not suppose to hold regular inquiry for the charge of same misconduct that was adjudicated in criminal trial, but consideration of circumstances relating to the conduct is necessary to chose the punishment, if any at all is required to be imposed. The Rule 19(i) gives a very broad discretion to the disciplinary authority and that authority after consideration of the circumstances, if deem fit may even arrive at a conclusion for not subjecting the government servant with penalty or otherwise. A definite purpose is there behind the discretion so given and that is to examine the circumstances in which the conduct that led to conviction was committed. A definite purpose is there behind the discretion so given and that is to examine the circumstances in which the conduct that led to conviction was committed. A government servant may suffer conviction of a criminal charge and such criminal charge may be having and may not be having any bearing to the conduct i.e. necessary to discharge the duties relating to services. A conviction may be there for very minor offence relating to violation of traffic rules or minor taxation provisions or some anti pollution provisions or on any other similar type of provision, but in normal course such conviction may not demand any punishment. It is not only in the cases of minor criminal charge but even in the cases of grievous charges as per Rule 19(i) all the circumstances have to be considered. In a country like ours a huge number of government servants are coming from agrarian background and from peasants families. For several reasons revenue disputes may be existing among the peasants and those may be even among the brothers and that may give rise to some unwarranted criminal incident. This may certainly cause a liability under criminal law, but may not be relating to the conduct that is required under service jurisprudence, There may be numerous eventualities wherein a person convicted for a wrong under criminal law would have not committed a wrong that may reflect his conduct unworthy to be retained in service. Some time some unpleasant happenings happens unintentional or for a cause that may not making the person concern totally unethical. Such act of the person may not be involving moral turpitude. The government servant involved in such an incident is not required to be penalised necessarily. It is for this reason, the disciplinary authority is required to examine all circumstances pertaining to conduct of a government servant. The law making authority, thus, under Rule 19(i) ibid, emphasised for consideration of conduct that led to the conviction. 7. In the case in hand the disciplinary authority as accepted by the respondents did not record any such circumstance and ipse-dixit on the count of conviction dismissed the petitioner. The dismissal in the manner adopted by the disciplinary authority is alien to Rule 19 of the Rules. 7. In the case in hand the disciplinary authority as accepted by the respondents did not record any such circumstance and ipse-dixit on the count of conviction dismissed the petitioner. The dismissal in the manner adopted by the disciplinary authority is alien to Rule 19 of the Rules. The order impugned dated 12.8.2004 passed by the disciplinary authority i.e. the Deputy Director (Secondary), Department of Education, Jodhpur, thus, is not in consonance to the requirement of Rule 19(i) of the Rules. 8. The petition for writ, thus, deserves acceptance. Accordingly, the same is allowed. The order dated 12.8.2004 is declared illegal and, therefore, the same is quashed. The petitioner is entitled for reinstatement in service. However, the issue with regard to payment of wages for the period the petitioner remained out of employment is required to be considered and decided by the competent authority as per Rule 54 of the Rajasthan Service Rules, 1951. The disciplinary authority shall also be having liberty to consider case of the petitioner afresh as per Rule 19(i) of the Rules of 1958. Such consideration is required to be made within a period of three months from today. 9. No order to costs.