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Madhya Pradesh High Court · body

2011 DIGILAW 66 (MP)

Shriram Sharma v. State of M. P.

2011-01-17

J.K.MAHESHWARI

body2011
ORDER J.K. Maheshwari, J. 1. This petition is directed against the order of termination Annexure P-4 dated 6-10-2007 passed by the District Education Officer, District Morena, whereby the Petitioner was terminated because of his conviction and sentence passed by the trial Court for the offence under Section 323 read with Section 34 of Indian Penal Code with fine of Rs. 200/-. 2. Learned Counsel appearing on behalf of the Petitioner contends that as per the prosecution story, it is apparent that in the family dispute the said offence was registered against the Petitioner under Section 323 read with Section 34 of Indian Penal Code, the trial Court convicted him and directed to undergo the sentence of one month and fine of Rs. 200/-. On filing an appeal before the Appellate Court, the conviction was maintained but looking to the facts and circumstances, imprisonment was set aside and only the fine was imposed. 3. Shri K. S. Tomar, learned Senior Advocate has placed a reliance of the Apex Court in the case of State of M.P. and Ors. v. Hazarilal : (2008) 3 SCC 273 and contends that the said offence does not involve the moral turpitude. However, looking to the nature of the offence and in the circumstances in which it has taken place, the termination of the services of the Petitioner is unwarranted. The Court in the similar situation dealt with the issue and held that in all the cases bearing the sentence by way of fine to the employee is not required to be removed abruptly. However, prayer is made to quash the order Annexure P-4 passed by the District Education Officer, Morena. 4. Shri Devendra Choubey, learned Dy. Govt. Advocate of the Respondents/State contends that it is a case wherein the conviction has not been set-aside and the sentence has only been set-aside by the Appellate Court, but the amount of fine of Rs. 200/- has been upheld. In such circumstances the finding with respect to conviction has not been set aside, however, the authority competent has not committed any error in passing the order to terminate the Petitioner. In view of the aforesaid it is prayed that the petition may be dismissed. 5. 200/- has been upheld. In such circumstances the finding with respect to conviction has not been set aside, however, the authority competent has not committed any error in passing the order to terminate the Petitioner. In view of the aforesaid it is prayed that the petition may be dismissed. 5. Having heard the learned Counsel appearing for the parties and on perusal of the judgment of the Apex Court it is clear that the Tribunal relying upon the judgment of Shankar Dass v. Union of India, the issue of termination has been dealt with and directed the Respondents to consider the case of the employee in accordance with the provisions of Probation of Offenders Act, 1958. Thus, the Apex Court in view of the judgment of Shankar Dass v. Union of India and further relying upon various other English judgments the said issue has been dwell upon. The observation which has taken note in the judgments is reproduced as under: 10. Despite the said observation Shankar Dass was dismissed from service. This Court held thus: 7. 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 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. But the right to impose penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the Appellant is whimsical. But the right to impose penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the Appellant is whimsical. We express similar dissatisfaction in this case. 13. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed after referring to previous decisions and authorities, observed thus 35... 27 ...The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalizations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing Court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R.V. Ministry of Defence, ex p Smith is not necessarily appropriate to the protection of human rights. 6. In view of the foregoing, the facts of the criminal case is required to be taken note of. On perusal thereof it appears that after intimating the police a private complaint was filed by the complainant for an offence under Sections 294, 500-B, 341 and 352 of Indian Penal Code whereupon the cognizance had taken by Court only under Sections 323 and 294 of Indian Penal Code. In the said case on the basis of the statement of witnesses even on non-availability of the medical report the conviction was directed by the trial Court. The Appellate Court maintained the conviction, but the sentence has been reduced only to the extent of the amount of fine. It is also available on record that the said dispute was amongst the family members, wherein on filing of private complaint in the aforementioned sequel of facts the conviction was directed. The Appellate Court maintained the conviction, but the sentence has been reduced only to the extent of the amount of fine. It is also available on record that the said dispute was amongst the family members, wherein on filing of private complaint in the aforementioned sequel of facts the conviction was directed. It is true, this Court cannot interfere in the findings of the conviction as recorded, but the reasonableness and justification may be looked into as the said conviction having adverse effect on the employment of the Petitioner. However, the principle of proportionality and reasonableness is required to be gone into while terminating an employee from the employment on account of his conviction. It is to be further seen whether the said offence involved the moral turpitude of the employee concerned. 7. In the facts of the criminal case it is apparent that the conviction of the deceased Petitioner is on taking cognizance on the private complaint under Section 323 of Indian Penal Code for the allegation of assault and to corroborate those injuries, medical report is not available. However, while acting justly and reasonably, it can safely be expected that if the assault is there even for the offence under Section 323 of Indian Penal Code the corroboration by medical evidence ought to have been proved by medical report or by calling the doctor. Even in a case of private complaint if there was an injury to which the offence has registered as alleged there must be a treatment by a private doctor or the treatment slip etc. which is also not available. It is further clear that the dispute arose amongst the members of the family. Looking to the prosecution narration on some dispute the assault was made to which the trial was conducted which does not involve the moral turpitude of the employee concerned. However, merely an imposition of fine would not be an impediment to the deceased employee. In such a case he may be dealt with as per the provisions of Probation of Offenders Act. On perusal of the language of the order impugned it does not reveal that while terminating the Petitioner the authority competent has acted reasonably, just and fairly after due application of mind in view of the foregoing. In such a case he may be dealt with as per the provisions of Probation of Offenders Act. On perusal of the language of the order impugned it does not reveal that while terminating the Petitioner the authority competent has acted reasonably, just and fairly after due application of mind in view of the foregoing. In such circumstances merely on the basis of a conviction of the Petitioner, termination by the order impugned as passed by the authority competent without acting reasonably, justly and fairly. 8. If this Court take the observation of Lord Carswell into consideration it is apparent that the traditional ground of judicial review is distinguishable from the doctrine of proportionality. While applying the principle of proportionality the Court is required to see that the decision making authority has struck on the point which is rational to take reasonable decision. While applying the said principle it is to be further seen that the consequence of such order are giving the due weight to the interest and consideration or not. In the present case the Petitioner after having its termination died and the legal heirs have brought on record. On account of termination of the deceased Petitioner the legal heirs may not be in a position to get the retiral and pensionary benefits. Thus, in the opinion of this Court the decision making authority has not struck on the point of rational and reasonable decision in a case in which a fine of Rs. 200/- have been imposed for an offence under Section 323/34 of Indian Penal Code registered on a private complaint and in the given facts deceased was terminated. Thus, in the light of the judgment of the Apex Court in the case of Shankar Das (supra) as well as District Central Co-operative Bank (supra) considering the principle of the proportionality in just, fair and reasonably the consideration made by the authority while passing the order impugned is unsustainable, therefore, it is liable to be quashed. Accordingly the order impugned dated 6-10-2007, Annexure P-4 is hereby quashed. 9. Resultantly, by quashing the order of termination Annexure P/4 the consequential benefits shall follow to the widow of the deceased employee. Accordingly the order impugned dated 6-10-2007, Annexure P-4 is hereby quashed. 9. Resultantly, by quashing the order of termination Annexure P/4 the consequential benefits shall follow to the widow of the deceased employee. However, it is hereby observed that the retiral and pensionary benefits which may be payable to the widow be now settled by the Respondents and it be released to her after due formalities within the period of four months from the date of communication of the order.