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2011 DIGILAW 2077 (RAJ)

Anil Kumar v. Jodhpur Vidhyut Vitaran Nigam Ltd.

2011-09-24

DINESH MAHESHWARI, SANGEET LODHA

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JUDGMENT 1. This intra-court appeal is directed against the order dated 18.03.2009 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No. 1968/2009) filed by the petitioners-appellants; and has declined to interfere in the order dated 02.03.2009 (Annex.4) as issued by the respondent No. 2 Superintending Engineer (O&M), Jodhpur Vidhyut Vitaran Nigam Ltd. Hanumangarh Circle, Hanumangarh Junction in termination of services of the petitioner-appellant who was appointed as a probationer trainee but on police verification, was found convicted for an offence under Section 379 IPC. 2. Put in brief, the relevant background aspects of the matter are that by the order dated 05.09.2008 (Annex.2), the appellant came to be appointed on the post of Technical Helper (Electrician) as a probationer trainee on a fixed remuneration of Rs. 2900/- per month for a period of two years subject to the terms and conditions mentioned in the order of appointment. "17. The character antecedents of these candidates will also be got verified from the Superintendent of Police. In case of doubtful or unsatisfactory character, his/her probation training will be liable to be terminated without giving notice and he/she will not be entitled to any kind of compensation." 3. The appellant joined the services under the said appointment order on 19.09.2008. However, the respondents proceeded to terminate the services of the appellant by the impugned order dated 02.03.2009 (Annex.4) for the reason of the Superintendent of Police, Sriganganagar having stated in his report that in a criminal case bearing No. 157/2000, the appellant was convicted for an offence under Section 379 IPC. 4. The petitioner-appellant attempted to question the said order dated 02.03.2009 in the writ petition wherefrom has arisen this intra-court appeal. It was an admitted position before the learned Single Judge that the appellant was charged with the offence under Section 379 Indian Penal Code on a report made by the Sub- Engineer, Irrigation Department, Padampur on 14.08.2000 whereupon FIR No. 157/2000 was registered and charge-sheet was filed in the Court; and the matter was tried in Criminal Case No. 481/2000 in the Court of Judicial Magistrate, Padampur. It was, however, submitted that though the learned Magistrate found the charges established and convicted the appellant for the said offence under Section 379 Indian Penal Code but instead of sentencing, released him on probation under Section 4 of the Probation of Offenders Act, 1958 ('the Act of 1958'). It was contended that since the appellant had not been sent to imprisonment, the order of Judicial Magistrate merely convicting the appellant for a petty offence could not have been a ground for termination of services. The learned Single Judge took note of the facts of the case and the submissions made on behalf of the petitioner- appellant and declined to interfere in the matter after finding that the petitioner stood convicted of criminal charge involving moral turpitude. The learned Single Judge said,- "The services of the employees who have been engaged by Jodhpur Vidhyut Vitran Nigam Limited were earlier governed by the provisions of Rajasthan State Electricity Board Technical Workmen Service Regulations, 1975. However, on creation of Jodhpur Vidhyut Vitran Nigam Limited and other Companies in the State, the Jodhpur Vidhyut Vitran Nigam Limited has framed service conditions of its employees and the regulations providing therein that if a person is convicted on criminal charge involving moral turpitude his services are liable to be terminated. In the instant case, since indisputably the petitioner stood convicted for the offence of theft punishable under Section 379 Indian Penal Code which involves the moral turpitude and therefore, the respondents were justified in terminating the services of the petitioner by the order impugned. I do not find any good ground to interfere with the order impugned in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India. The writ petition is therefore, dismissed summarily." 5. Questioning the order so passed by the learned Single Judge, the learned counsel for the appellant strenuously contended that when the Trial Court had extended the appellant benefit of probation under Section 4 of the Act of 1958 then, as per the provisions of Section 12 of the said Act, such a conviction could not have been considered resulting in disqualification and, hence, services of the appellant were wrongly terminated by the respondents. The learned counsel also submitted that the appellant had furnished all the requisite information as sought by the respondents-authorities and did not conceal any material fact; and, therefore, the termination of his services only on the ground of past conviction in relation to a petty offence and despite his having been extended the benefit of probation under Section 4 ibid, was neither justified nor countenanced by law. The learned counsel further submitted that the order dated 02.03.2009 had been passed without an opportunity of hearing to the appellant who had otherwise rendered unblemished service since after joining; and the respondents were not justified in depriving a low paid employee of his only source of livelihood. 6. Per contra, the learned counsel for the respondents has referred to the decision of the Hon'ble Supreme Court in the case of Harichand v. Director of School Education, (1998) 2 SCC 383 and contended that conviction of the appellant for an offence under Section 379 Indian Penal Code being not a matter of dispute, the respondents have not committed any error in terminating his services after such fact came to the fore in the police verification. The learned counsel submitted that the services have been terminated as per the very terms and conditions of the order of appointment and in this matter, there was no requirement of serving any notice or extending opportunity of hearing particularly when the facts remained indisputable. 7. Having given a thoughtful consideration to the rival submissions and having perused the material placed on record, we are unable to find any reason to consider interference in this matter. 8. The fundamental and basic fact of the appellant having been convicted for the offence under Section 379 Indian Penal Code remains indisputable. A copy of the judgment and order dated 19.09.2000 has been placed on record as Annexure-5 and apparent it is that the appellant along-with co-accused persons was found guilty of offence under Section 379 Indian Penal Code after the documentary evidence was admitted and then, no evidence was led on behalf of the accused. The learned Trial Court, however, considered it proper not to punish the accused persons including the petitioner-appellant with imprisonment and instead, released them on probation on necessary terms and conditions. The question is as to whether the services of the petitioner could have been terminated for such conviction? The learned Trial Court, however, considered it proper not to punish the accused persons including the petitioner-appellant with imprisonment and instead, released them on probation on necessary terms and conditions. The question is as to whether the services of the petitioner could have been terminated for such conviction? The learned counsel for the appellant contends that per Section 12 of the Act of 1958, the disqualification attaching to the conviction being removed, the termination is invalid. The submissions as made by the learned counsel for the appellant with reference to Section 12 of the Act of 1958 remains untenable and stands answered against the appellant for the principles in Harichand's case (supra) wherein the Hon'ble Supreme Court has held,- "7. In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from Government service." 9. When the conviction for an offence could be taken into account for the purpose of dismissal of the person from Government service, the respondents cannot be faulted in taking the same into account in terminating the services of the appellant. 10. Another relevant aspect of the matter is that the appellant was appointed as a probationer trainee with clear stipulation that in case of doubtful or unsatisfactory character, his probation training was liable to be terminated. The respondents have neither proceeded on any irrelevant consideration nor could be said to have committed any illegality in issuing the order dated 02.03.2009 after receiving the report about conviction of the appellant and that too, for an offence under Section 379 IPC. The factum of conviction being indisputable, the submissions that the appellant had furnished all the requisite information as sought or has rendered unblemished service do not make out a case for interference. 11. The factum of conviction being indisputable, the submissions that the appellant had furnished all the requisite information as sought or has rendered unblemished service do not make out a case for interference. 11. The submissions regarding want of opportunity have only been noted to be rejected. Apart that no such notice was necessary as per terms and conditions of his appointment, the appellant has even otherwise failed to state any case of prejudice. As noticed, the factum of conviction of the appellant for an offence under Section 379 Indian Penal Code is not in dispute and standing such an indisputable position, the only consequence could have been that of termination of his service. 12. In view of the above, the learned Single Judge cannot be said to have committed any error in declining to exercise the writ jurisdiction and in dismissing the writ petition. Consequently and as a result of the aforesaid, this appeal fails and is, therefore, dismissed. No costs.Appeal dismissed. *******