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2016 DIGILAW 389 (JHR)

Haricharan Mahto v. State of Jharkhand

2016-02-29

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : Virender Singh, J. Being aggrieved of order dated 15.01.2015 handed down in W.P.(S) No. 743 of 2009 whereby, the writ petition stands dismissed, the appellant writ petitioner (for short “petitioner”) has moved this Court through the medium of instant Letters Patent Appeal which is at admission stage. 2. The appellant was booked in a criminal case under Sections 302, 323 r/w Section 149 of the Indian Penal Code and he was suspended on 03.12.1984 as, he was arrested in the said criminal case along with 11 co-accused persons. After he got bail from the concerned court, the suspension order was revoked in February, 1985. The trial of the said criminal case culminated into conviction of the petitioner and 11 co-accused in April, 1991 under Sections 302, 323 r/w Section 149 of the Indian Penal Code. The petitioner, being aggrieved of the said judgment of conviction and sentence, preferred an appeal in the High Court being Criminal Appeal (DB) No. 104 of 1991. However, after the petitioner was convicted along with 11 co-accused, a show cause notice was served upon him and vide order dated 18.06.2005 he was dismissed from service. It needs to be mentioned here that at that time the appeal filed by him was still pending in the High Court which was ultimately partly allowed by setting aside the conviction of the petitioner for the main charge of Section 302 r/w Section 149 of the Indian Penal Code and he instead was found guilty for the offence under Section 324 r/w Section 34 of the Indian Penal Code. He was also directed to pay a fine of Rs. 50,000/. Admittedly, the petitioner has not thrown challenge to the judgment of the Division Bench of this Court rendered in aforesaid Criminal Appeal (DB) No. 104 of 1991. 3. After the disposal of the aforesaid criminal appeal, the petitioner knocked the door of this Court through the medium of W.P.(S) No. 3148 of 2007 seeking his reinstatement in service which petition ultimately came to be disposed of vide order dated 22.02.2008 directing the Deputy Commissioner, West Singhbhum, Chaibasa (respondent no. 2 therein) to consider the application/representation of the petitioner in right perspective to decide his claim by passing a reasoned order within stipulated period. 2 therein) to consider the application/representation of the petitioner in right perspective to decide his claim by passing a reasoned order within stipulated period. Thereafter, the petitioner moved a representation before the concerned authority which ultimately was dismissed vide order dated 17.07.2008 which once again gave him a cause to knock the door of the Writ Court through the medium of writ petition [W.P. (S) No. 743 of 2008], which now stands dismissed. 4. Heard the learned counsel for both the sides and perused the documents on record. 5. Mr. P. A. S. Pati, the learned counsel for the appellant submits that may be the petitioner has not challenged his conviction now recorded under Section 324 r/w Section 34 I.P.C. he, after the main charge of Section 302 of the Indian Penal Code being diluted to a lessor gravity, is entitled to have a relief of lessor punishment by the Department. In short, the learned counsel wants to impress upon the Court that the punishment of dismissal from service in the present set of circumstance is disproportionate to the gravity of the offence. In support of his contention, he has relied on the judgment of the Hon'ble Supreme Court in “State of Madhya Pradesh & Ors. Vs. Hazarilal”, reported as (2008) 3 SCC 273 in which case also, the respondent therein was convicted under Section 323 r/w Section 34 of the Indian Penal Code with a fine of Rs. 500/and ultimately the Tribunal had given a direction to the authority concerned to consider the case appropriately in the peculiar facts of the said case which order was ultimately confirmed by the High Court and the appeal filed by the State was dismissed by the Hon'ble Supreme Court. The learned counsel submitted that in the said case also, the provision as contained in Rule 170 of Bihar Board's Miscellaneous Rules, 1958 which are parimateria to Rule 15 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 was considered. In this context, the learned counsel has drawn the attention of the Court to para 6 of “Hazarilal” case. 6. We have considered the contentions of the learned counsel for the petitioner but are not in agreement with the same. The case of the petitioner has been considered in terms of clause (i) and (ii) of Rule 166 of Bihar Board's Miscellaneous Rules, 1958. 6. We have considered the contentions of the learned counsel for the petitioner but are not in agreement with the same. The case of the petitioner has been considered in terms of clause (i) and (ii) of Rule 166 of Bihar Board's Miscellaneous Rules, 1958. It would be relevant to have a revisit to Rule 170 of Bihar Board's Miscellaneous Rule, 1958 which reads : 170. Orders inapplicable to persons judicially convicted.-The provisions of clauses (i) and (ii) of rule 166 shall not apply (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded in writing, it is not reasonably practicable to give to that person an opportunity of showing cause against the action proposed to be taken in regard to him; (c) where the Governor is satisfied that in the interest of the security of the State it is not expedient to give to the accused person an opportunity to show cause against the action proposed to be taken in regard to him.” 7. The petitioner has been dismissed from service after he suffered conviction for the charge of Section 302 r/w Section 34 of the Indian Penal Code along with other co-accused. We are conscious of the fact that in the appeal the main charge of Section 302 of the Indian Penal Penal Code stands diluted to Section 324 r/w Section 34 of the Indian Penal Code. Along with the conviction for the said charge, the petitioner has been slapped with a fine of Rs. 50,000/. The ground for diluting the charge by the Division Bench while dealing with the aforesaid Criminal Appeal (D.B) is that the occurrence had taken place during a quarrel therefore, it is not safe to convict the accused for the main charge of Section 302 of the Indian Penal Code. The conduct of the accused which has led to conviction on a criminal charge in this context assumes importance. The conduct of the accused which has led to conviction on a criminal charge in this context assumes importance. The petitioner is one who along with the other co-accused namely, (i) Krishna Mahato @ Kisto Mahato, (ii) Angad Mahato, (iii) Shyamlal Mahato, (iv) Jiten Mahato @ Jitendra Mahato, (v) Dalen Mahato @ Dharmendra Mahato, (vi) aghunath Mahato, (vii) Premnath Mahato, (viii) Sankar Mahato, (ix) Suful Mahato, (x) Niranjan Mahato and (xi) Suren Mahato, had formed an unlawful assembly and thereafter, attacked the accused. So far as forming unlawful assembly is concerned, the finding recorded by the Trial Court has been converted into one of common intention. It is only on account of the entirety of facts in which the occurrence had taken place, the charge has been diluted to Section 324 r/w Section 34 of the Indian Penal Code. The accused persons were armed with sharp weapons therefore, it turned out to be a case under Section 324 of the Indian Penal Code. The petitioner admittedly remained in jail for a considerable period after the registration of the case. He was again sent behind the bars after he suffered conviction from the trial court and then released on bail when his substantive sentence was suspended. In “State of Madhya Pradesh & Ors. Vs. Hazarilal” (supra), the facts of the case were altogether different. In the said case, admittedly the employee (respondent therein) had never gone to jail and the punishment of fine was of Rs. 500/. He was initially convicted for one month's sentence with fine of Rs. 500/which order was disturbed by the learned Sessions Judge by deleting the substantive sentence of one month and upholding the fine of Rs. 500/. It is in that context, the Hon'ble Supreme Court in para 7 observed as under : 7. “By reason of the said provision, thus, “the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.” 8. Such a construction, in our opinion, is not warranted.” 8. In the case on hand, the learned Writ Court, while dealing with the case of the petitioner, has observed as under : “It is immaterial to see the gravity of the offence rather the moot question which is that as to whether an employee convicted in a criminal case, can be permitted to remain in service or not. The moment the government employees are found guilty for the offence punishable under any penal code, the same will amount to misconduct. A person who is held guilty for a criminal case is said to have committed misconduct and such person cannot be retained in service. In view of provision of Bihar Government Servant Conduct Rule, 1976 in which it has been provided that conviction in a criminal case will be misconduct and an employee who is convicted in criminal case will be treated to be unbecoming of a Government Servant.” 9. In our considered view, on the representation made by the petitioner after disposal of the earlier writ filed by him, the authority concerned has dealt with the case of the petitioner on all aspects and thereafter, rejected the said representation. We, thus, finding no flaw in the said decision taken by the authority concerned, are of the considered view that the order of the learned Single Judge does not suffer from any infirmity calling for interference in the instant Letters Patent Appeal which merits dismissal. Ordered accordingly.