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2014 DIGILAW 394 (ORI)

Dillip Kumar Pattanayak v. State of Orissa

2014-07-03

M.P.MISRA, S.N.DASH

body2014
JUDGMENT M.P. MISRA, MEMBER (JUDICIAL) The applicant has come up with this original application challenging the order dtd. 31.07.2012 at Annex-3 dismissing him from service on the ground of his conviction in a criminal case. 2. The case of the applicant, as revealed in his original application, may be briefly stated as follows: The applicant, while continuing as V.S.Clerk in Sriram Chandrapur C.H.C. in the district of Dhenkanal, was involved in a criminal case. The said criminal case was tried in the Court of Special Judge, Vigilance, Cuttack and the Special Judge, Vigilance by his judgment dtd. 30.11.2011 at Annx.-1, convicted him under Section 13(2) read with Section 13(1)(d) and Under Sec.7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo imprisonment for three months and to pay fine of Rs.1,000/- in default to undergo rigorous imprisonment for one month more. On the basis of such conviction, respondent No.2, by his order dtd.31.07.2012 atAnnx.-3, dismissed him from service under Rule 18(1) of the OCS (CCA) Rules, 1962. This order of dismissal is sought to be impugned in the present O.A. on the ground that the order of dismissal was passed without giving an opportunity to the applicant of being heard. 3. The respondents, in their counter while challenging the maintainability of the O.A., have taken the plea that there is no provision in the OCS (CCA) Rules, 1962 for service of a show cause notice on the applicant after his conviction by a competent criminal Court. 4. We have heard the learned counsel for the applicant and the learned Addl. Standing Counsel. 5. The learned counsel for the applicant submitted that before any adverse order could be passed against the applicant, he should have been given a chance to show cause against his proposed dismissal. The learned Addl. Standing Counsel, on the other hand, submitted that it was not required to issue a show cause notice to a delinquent Govt. servant, who had faced a regular trial and was convicted by a competent Criminal Court of an offence involving moral turpitude. He relied on a decision of the Hon'ble Apex Court in the case of Union of India v. Tulsiram Patel, reported in (1985) 3 SCC 398 . servant, who had faced a regular trial and was convicted by a competent Criminal Court of an offence involving moral turpitude. He relied on a decision of the Hon'ble Apex Court in the case of Union of India v. Tulsiram Patel, reported in (1985) 3 SCC 398 . In this decision their Lordships while interpreting the proviso to Article 311 (2) of the Constitution of India have held that there is no necessity to give a convicted person an opportunity of making representation on the proposed penalty. The O.C.S. (CC&A) Rules, 1962 also nowhere provides for service of any such notice to a convicted employee before passing of the order of dismissal. We are, therefore, inclined to hold that there was no necessity on the part of respondent no.2 to issue a show cause notice to the applicant. The contention raised by the learned counsel for the applicant, in this regard, is, therefore, found to be without any merit. 6. The learned counsel for the applicant further submitted that though the impugned order states that it has been passed under Rule 18(1) of the O.C.S. (CC&A) Rules, 1962 actually there was no compliance of the provision of Rule 18(1) of the said Rules by respondent No.2 before passing the impugned order of dismissal. There appears to be sufficient force in this argument. In the case of Prasanta Kumar Sahu v. State of Orissa and another, reported in 2011 (Supp.- II) OLR 848 their Lordships of our own High Court have held that Rule 18 of the O.C.S. (CC&A) Rules is only an enabling provision and it does not ipso facto disqualify a person on his conviction. In the case of Gurunath Pradhan v. State of Orissa, reported in 1979 (3) SLR 118 (Ori.) it has been clarified by our own High Court that an order of dismissal has to be passed on the basis of conduct of the Govt. servant and not on the basis of conviction. Rule 18(1) lays down that where a penalty is imposed on a Govt. 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. servant and not on the basis of conviction. Rule 18(1) lays down that where a penalty is imposed on a Govt. 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. According to their Lordships, the disciplinary authority before imposing a major penalty like dismissal, removal or compulsory retirement has to consider the circumstances of the case and the conduct of the Govt. servant, which led to his conviction on a criminal charge. The impugned order at Annx.-3 does not reveal that respondent No.2 considered the conduct of the applicant, which led to his conviction on a criminal charge. In the case of Prasanta Kumar Sahu (supra) while interpreting Rule 18 of the Rules, their Lordships have held as follows: "This provision is also an enabling provision and it does not ipso facto disqualify the person on his conviction. On a conviction by a criminal Court an employee may be discharged or removed from service without following the principles of natural justice as enshrined in Rules 15, 16 and 17 of the CCA Rules, 1962. Thus, the contention that mere fact that the accused has been convicted for criminal charges does not attach with disqualification by virtue of Article 311 of the Constitution of India or Rule 18 of the C.C.A. Rules." 7. It is thus clear that mere conviction of a Govt. servant, in a criminal case, does not automatically result in his dismissal from service. Respondent No.2 should have passed a reasoned order taking into consideration the conduct of the applicant, which led to his conviction on a criminal charge. 8. In view of our above analysis, the original application is allowed and the impugned order dtd. 31.07.2012 at Annx.-3 stands quashed. Respondent No.2 shall however be at liberty to pass appropriate orders afresh after due compliance of Rule 18 of the O.C.S. (CC&A) Rules, 1962 as indicated earlier in this order. Till such orders are passed, the applicant shall be deemed to be under suspension from the date of his dismissal under Annx.-3. 9. Accordingly, the O.A. is disposed of. Send copies.