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2015 DIGILAW 1134 (RAJ)

Pukhraj v. State of Rajasthan

2015-05-26

SANDEEP MEHTA

body2015
Order Heard and perused the material available on record. By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order Annex.6 dated 18.5.2015 whereby, the petitioner was terminated from service on the ground of his conviction in a criminal case involving offences under the Prevention of Corruption Act by resorting to Rule 19(1) of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. Learned counsel for the petitioner argued that as per the Proviso to Rule 19(1) of the CCA Rules, before an order terminating the services of an employee can be passed by resorting to the said provision, consultation with the Commission is mandatory. He stressed upon the fact that admittedly no consultation was made with the Commission before passing the impugned order as required by the aforesaid Proviso and thus, the impugned order is bad in the eye of law and deserves to be quashed. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the impugned order as well as the provisions of the Rules. Rule 19(1) of the CCA Rules provides an exception to the general procedure for terminating the services of a confirmed Government employee. The Rule itself starts with a non-obstante clause stipulating that notwithstanding anything contained in Rules 16, 17 and 18, where a penalty is imposed on 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 Proviso to Rule 19 reads thus, “Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.” Thus, consultation is required to be made with the commission only where such consultation is felt necessary. The issue regarding the right of a Government servant convicted for the offence under the Prevention of Corruption Act to continue in service was examined in extenso by the Hon’ble Supreme Court in the case of K.C. Sareen vs. C.B.I., Chandigarh reported in AIR 2001 SC 3320 . It was observed:- “11. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. It was observed:- “11. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When 'a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction. 12. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction. 12. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate Court or the revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. 13. We are fortified in holding so by two other decisions of this Court. One is Deputy Director of Collegiate Education v. S. Nagoor Meera (1995) 3 SCC 377 . The following observations of this Court are apposite now. "The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a Government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the Government servantaccused is acquitted on appeal or other proceeding, the order can always be revised and if the Government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to, had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal Court." An identical controversy also arose before the Hon’ble Supreme Court in the case of Municipal Committee, Bahadurgarh vs. Krishnan Behari reported in AIR 1996 SC 1249 . The Hon’ble Supreme Court observed as below :- “2. The respondent was a clerk in the Municipality. He was alleged to have misappropriated a sum of Rs. 1548.78 p. by falsifying the accounts. He was prosecuted in a criminal case and convicted under Section 409 of the Indian Penal Code and sentenced. On appeal, the conviction was altered from Section 409 to Section 468 of the Indian Penal Code. The respondent was a clerk in the Municipality. He was alleged to have misappropriated a sum of Rs. 1548.78 p. by falsifying the accounts. He was prosecuted in a criminal case and convicted under Section 409 of the Indian Penal Code and sentenced. On appeal, the conviction was altered from Section 409 to Section 468 of the Indian Penal Code. Sections 468 reads; "Whoever commits forgery intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine." 3. In view of the said punishment, the Municipal Committee dismissed the respondent. The respondent filed an appeal before the Director of Local Bodies who, while upholding the correctness of the action, reduced the punishment to stoppage of four increments and has also directed that the period during which the respondent was out of service should be treated as extraordinary leave. An appeal filed by the Municipal Committee to the Commissioner was dismissed as incompetent. A writ petition filed by the Municipal Committee was also dismissed in limine by the High Court. 4. It is obvious that the respondent has been convicted of a serious crime and it is a clear case attracting under Proviso (a) to Article 311(2) of the Constitution. In a case of such nature - indeed, in cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The Director had interfered with the punishment under a total misapprehension of the relevant factors to be borne in mind in such a case. 5. Accordingly, this appeal is allowed. Judgments of the High Court. Commissioner and the Director are set aside and the order of the Municipal Committee dismissing the respondent is restored.” In the case of Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera reported in AIR 1995 SC 1364 , the Hon’ble Supreme Court held as below :- “9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of action under clause (a) of the second proviso to Article 311 (2) is not permissible. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of action under clause (a) of the second proviso to Article 311 (2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India (1985) 2 SCR 358: "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 other 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 a penalty carries with it the duty to act justly." 10. But the right to impose a penalty carries with it the duty to act justly." 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.” In view of the ratio of the above quoted Supreme Court decisions, it is evident that a public servant having been convicted for the offence of corruption, has no right to continue on the civil post. Therefore, the petitioner’s disciplinary authority was not required to make any consultation with the Commission before passing the impugned order Annex.6 dated 18.5.2015 terminating his services on the ground that he was convicted on a charge of corruption. The impugned order does not suffer from any illegality, irregularity or perversity so as to call for any interference in the instant writ petition. Consequently, the instant writ petition, being devoid of any merits, is hereby dismissed. Stay petition also stands dismissed. No order as to cost.