JUDGMENT Nishita Mhatre, J. 1. The challenge in this petition is to the decision of the Central Administrative Tribunal, Calcutta Bench in O.A. No. 1213 of 1998. 2. The petitioner was appointed as an Extra Departmental Delivery Agent on 13th December 1980. He was arrested on 9th May 1988 for alleged offences committed under Sections 148 & 308 read with Section 149 of the Indian Penal Code. He was granted bail. However, in view of his arrest he was “put off duty”. After his release on bail he requested the respondents to permit him to resume duty. The petitioner’s representation was turned down. The trial against the petitioner and other persons resulted in the petitioner’s conviction under Sections 148 and 302 read with Section 149 of the Indian Penal Code by the Sessions Court. An appeal was preferred by the petitioner and the other accused before this Court. The petitioner was acquitted on 1st September 1997 of the charge under Section 302 read with Section 149 of the Indian Penal Code. However he was convicted under Sections 148 and 323 read with Section 149 of the Indian Penal Code. The High Court further directed that since the petitioner had already under gone detention after conviction no further sentencing was required. 3. The petitioner submitted his representation on 11th November 1993 to the respondents, seeking reinstatement in service. He received a communication from the authorities on 5th December 1997 informing him that since he had been convicted and sentenced, it was not possible to reinstatement in service. 4. The petitioner thereafter preferred O.A. No. 1213 of 1998 challenging the order of dismissal passed against him on 30th April 1994. This order was passed in exercise of the powers conferred under Rule 8 A (i) of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964. 5. Aggrieved by the order of dismissal the petitioner preferred Original Application No. 1213 of 1998 before the Central Administrative Tribunal, Calcutta Bench. The Tribunal by its order dated 29th February 2000 held that the order of dismissal passed against the petitioner was justified as he had been convicted under Section 304 Part II of the Indian Penal Code. The Tribunal burst aside the contention raised on behalf of the petitioner that the punishment of dismissal was disproportionate to the offence committed by him. 6. Ms. The Tribunal burst aside the contention raised on behalf of the petitioner that the punishment of dismissal was disproportionate to the offence committed by him. 6. Ms. Ghosal the Learned Counsel appearing for the petitioner submitted that the order of punishment has been imposed on the petitioner without any inquiry being conducted against him. She submitted that unless a domestic inquiry is held a delinquent employee cannot be dismissed from service. According to her the exercise of power under Rule 8 (a) (i) of the aforesaid rules was unjustified. She fortified her submission by placing reliance on the judgment of the Supreme Court in the case of Union of India & Anr., Appellants Vs. Tulsiram Patel, Respondent reported in AIR 1985 SC 1416 . She submitted that the respondents had not demonstrated that it was neither possible nor practicable to hold an inquiry against the petitioner. She urged that there was no exceptional circumstance to exercise the power conferred under Rule 8-A (i) and instead the petitioner ought to have been afforded an opportunity to be heard in terms of Rule 8-A of the aforesaid Rules. According to Ms. Ghosal the principles of natural justice had been reached and, therefore, the order of dismissal is vitiated. She further urged that the punishment of dismissal was disproportionate to the alleged misconduct committed by the petitioner and, therefore the Tribunal has erred in not appreciated this issue. The Learned counsel has also relied on the judgments of the Supreme Court in the case of the Divisional Personnel Officer, Southern Railway and Another, Appellant vs. T.R. Challappan, Respondent reported in AIR 1975 SC 2216 , Bhagat Ram, Appellant vs. State of Himachal Pradesh and Another reported in (1983) 2 SCC 442 and Southern Railway Officers Association and Another, Appellant vs. Union of India and Others, Respondents reported in (2009) 9 SCC 24 . Besides these judgments reliance was also placed on the judgment of the Allahabad High Court in Dost Mohammad, Petitioner vs. Union of India and Others, Opposite Parties reported in 1981 SLR 274. Ms. Ghosal further submitted that after the order dismissing the petitioner was passed on 30th April 1994, on the ground that he had been convicted under Sections 302 r/w 149 & 148 Indian Penal Code, the petitioner had been acquitted by this Court in Criminal Appeal No. 291 of 1993. Ms. Ghosal further submitted that after the order dismissing the petitioner was passed on 30th April 1994, on the ground that he had been convicted under Sections 302 r/w 149 & 148 Indian Penal Code, the petitioner had been acquitted by this Court in Criminal Appeal No. 291 of 1993. She submitted that although the conviction with regard to the offence committed under Section 148 has been confirmed the petitioner has been acquitted of the charge under Section 302 read with Section 149 and instead has been convicted under Section 323 read with Section 149. The Learned Counsel pointed out that the finding of the Tribunal that the petitioner has been convicted under Section 304, Part II is erroneous and contrary to the Material on record. Considering the fact that the petitioner had been convicted for a leisure offence, she urged that the punishment of dismissal was not commensurate with the alleged acts of misconduct. 7. Mr. Bose the Learned Counsel for the respondents submitted that there was no prayer in the original application for setting aside the order of dismissal which was passed on 30th April 1994. According to him, the dismissal order has been passed in exercise of the powers vested in the authority under Rule 8-A (i) of the E.D. Conduct and Service Rules. He submits that so long as the conviction against the petitioner stands he is not entitled to any relief. He submits that a bare perusal of the judgment of the High Court indicates that the conviction under Section 149 stands and since the petitioner had been charged under that section read with Section 302 it meant that the High Court was convinced that there was some element of guilt relating to the offence punishable under Section 302 and, therefore, he had been convicted under Section 149. The Learned Counsel then submitted that the judgments cited by the Learned Counsel for the petitioner have no relevance in the present case as what is the material is the fact that the dismissal order had not been challenged and there is no provision in the rules applicable to the petitioner to review the dismissal order on a person being acquitted. The Learned Counsel then submitted that there is no need to hold a departmental inquiry when the power is exercised under Section 8-A (i) as in the present case. The Learned Counsel then submitted that there is no need to hold a departmental inquiry when the power is exercised under Section 8-A (i) as in the present case. He submitted that the petitioner was convicted for a grave and serious offences and, that by itself rendered him unfit for duty with the respondents. 8. It would be necessary for us to first consider the rules governing the service of the petitioner. Rule 8 prescribes the procedure for imposing a penalty for the delinquent employee. A penalty can be imposed only after the employee is informed in writing of the action proposed against him and an opportunity is afforded to him to submit a representation. Such representation has to be taken into consideration by the appointing authority before the punishment is imposed. However, when the penalty of dismissal or removal from service is to be imposed a departmental inquiry has to be instituted against an employee. He must be informed of the charges against him and a reasonable opportunity of being heard in respect of those charges is required to be given to him. The penalty may be imposed only on the basis of the evidence adduced during such an enquiry. Sub-Rule 2 of Rule 8 describes the documents which are included in the record of proceedings. 9. Rule 8-A is an exception to the provisions of Rule 8 it reads as follows :- “8-A. Provisions of Rule 8 shall not apply- (i) where any penalty is imposed on an employee on the ground of conduct which has led to his conviction on a criminal charge ; or (ii) where the appointing authority empowered to dismiss or remove an employee is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such enquiry; or (iii) where the President is satisfied that in the interest of the security of the State it is not expedient to follow the procedure prescribed in that rule ; and the appointing authority may consider the circumstances of the case and make such orders thereon as it deems fit.” 10. It has been argued by the learned counsel appearing for the respondents that since the action was initiated against the petitioner under Rule 8-A the question of holding a departmental inquiry before dismissing the petitioner from service did not arise. Ms. It has been argued by the learned counsel appearing for the respondents that since the action was initiated against the petitioner under Rule 8-A the question of holding a departmental inquiry before dismissing the petitioner from service did not arise. Ms. Ghosal, has relied on the judgment of Tulsiram’s case (supra) to submit that the provisions of natural justice must be read into Rule 8-A as well. She has submitted that unless it is shown that it was not reasonably practicable to hold a departmental inquiry. Rule 8-A (i) should not be invoked. 11. It is true that the principles of natural justice could be read into provisions which relate to dismissal of an employee however when the statute specifically excludes these principles, it is not possible to read those principles into the rule. The provisions of Rule 8-A are pari materia with the second proviso to Article 311(2) of the Constitution of India. In fact, in Tulsiram’s case (supra) the Supreme Court while interpreting the Article 311 has enunciated the law as follows:- “70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase “this clause shall not apply is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311(2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication”……..It may appear harsh, but as mentioned earlier, the second proviso has been inserted in the Constitution as a matter of public policy and in public interest and for public good just as the pleasure doctrine and the safeguards for a government servant provided in clauses (1) and (2) of Article 311 have been. It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is in public interest and for public good that a government servant who has been convicted of a grave and serious offence or one rendering him unfit to continue in office should be summarily dismissed or removed from service instead of being allowed to continue in it at public expense and to public detriment. It is equally in public interest and for public good that where his offence is such that he should not be permitted to continue to hold the same rank that he should be reduced in rank. Equally where a public servant by himself or in concert with others has brought about a situation in which it is not reasonably practicable to hold an inquiry and his conduct is such as to justify his dismissal removal or reduction in rank, both public interest and public good demand that such penalty should forthwith and summarily be imposed upon him: and similarly, where in the interest of the security of the State it is not expedient to hold an inquiry, it is in the public interest and for public good that where one of the three punishments of dismissal removal or reduction in rank is called for, it should be summarily imposed upon the concerned government servant” 12. Further, the Court also observed that considerations of public policy, concern for public interest, regard for public good and the peremptory dictate of a constitutional prohibition far out way sympathy and commiseration for a government servant. The Court further observed that in certain cases the principles of natural justice can be modified and in exceptional cases they can even be excluded. 13. Thus the submission of the Learned Counsel for the petitioner that he should not have been sentenced to an economic or civil death by dismissing him from service by invoking Rule 8-A (i) is not tenable. The rule specifically bars the application of the provisions of Rule 8 for holding a departmental inquiry where a penalty is imposed on an employee for conduct which had led to conviction of a criminal charge. In the present case though the charge was framed against the petitioner under Sections 148, 302 read with Section 149 it has been reduced to a conviction under Section 148 and Section 323 read with Section 149. Thus there is no conviction of the petitioner on a criminal charge. In the present case though the charge was framed against the petitioner under Sections 148, 302 read with Section 149 it has been reduced to a conviction under Section 148 and Section 323 read with Section 149. Thus there is no conviction of the petitioner on a criminal charge. Whether that criminal charge is such that it warrants dismissal of the petitioner from service is another aspect which we will have to consider. 14. The provisions of Rule 8-A (i) stipulate as we have noted earlier that where a penalty is imposed on an employee on the ground of conduct which has led to his conviction for criminal charges the appointing authority may consider the circumstances of the case and make such orders thereon as it deems fit. Thus, the provisions leaves it to the discretion of the appointing authority which would be disciplinary authority as to the nature of the punishment to be imposed on the employee who is found guilty of a criminal charge. It is not necessary that in every case such a person who is convicted has to be dismissed from service. The Rule leaves it to the discretion of the appointing authority not only to consider the punishment which should be imposed on a delinquent employee, but also to make any order thereon which would include imposing a punishment which is commensurate with the nature of the conduct which led to the conviction. In the present case the Sessions Court had convicted the petitioner under Sections 148 and 302 read with Section 149. Thereafter he was dismissed from service. Today there is no dispute that the petitioner’s conviction under Section 302 read with Section 149 has been reduced to a conviction under Section 323 read with Section 149. Under Rule 16 the power of review has been vested with the Central Government or the Head of the circle or Post Master General (Region) or an authority immediately superior to the authority passing the orders either suo moto or otherwise called for records of an inquiry or disciplinary case and to review the order. A case may be re-opened after making the necessary inquiries and the order may be confirmed, modified or set aside or any appropriate orders deemed fit may be passed. A case may be re-opened after making the necessary inquiries and the order may be confirmed, modified or set aside or any appropriate orders deemed fit may be passed. The proviso to Rule 16 stipulates that no case shall be re-opened after the expiry of six months from the date of the order to be reviewed except by the Central Government or by the Head of the circle or by the Post Master General (Region). Where the penalty is sought to be increased by the reviewing authority, reasonable opportunity is required to be afforded to the employee to submit a representation against the proposed penalty. 15. In the present case the petitioner succeeded in his appeal before this Court against his conviction under Section 302 read with Section 149 on 1st September 1997. The petitioner wrote to the Sub – Divisional Inspector of Post Offices on 11th November 1997 requesting him to reinstate him in service in view of the judgment of the High Court, a copy which was furnished to the officer concerned. The petitioner received a communication on 5th December 1997 rejecting his prayer for the reinstatement. However, the petitioner had not made any such prayer for review either to the Central Government or to the head of the circle or to the Post Master General (Region) who had the power to re-open a case even after the expiry of six months from the date of the dismissal order. The petitioner had been dismissed on 4th December 1993. Therefore, the superior officer of the petitioner could not have reopened his case in 1997. However in our opinion, considering the facts and circumstances of the case it would be open for the head of the circle of the Post Master General (Region) to consider any representation of the petitioner which we permit him to file for reinstating him in service. While dealing with the petitioner’s case the aforesaid authority will bear in mind the fact that the petitioner has bee acquitted of the offence under Section 302 read with Section 149 and has been convicted for a lesser offence. The authority will also consider whether there can be a retrospective dismissal from service as the petitioner has been dismissed with effect from 4th December 1993 by a letter dated 30th April 1994. The authority will also consider whether there can be a retrospective dismissal from service as the petitioner has been dismissed with effect from 4th December 1993 by a letter dated 30th April 1994. The dismissal has been made effective from 4th December 1993, the date when the petitioner was convicted by the Sessions Court. 16. Accordingly the petition is disposed of by permitting the petitioner to apply, within four weeks from today, under Rule 16 of the Posts and Telegraphs Extra Departmental Agents (Conduct and Service) Rules, 1964 to the Head of the Circle or Post Master General (Region). If such an application is made the authority will consider the same in accordance with law within twelve weeks from the receipt of the application. Appropriate orders shall be passed and communicated to the petitioner immediately. 17. The petition is disposed of with no order as to costs. 18. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.