JUDGMENT : 1. Instant writ petition preferred under Article 226 of the Constitution of India impugns order dated 24.08.2018 (Annexure.4) passed by the Director, Secondary Education, Bikaner, whereby the petitioner has been dismissed from services. 2. The facts lying in a small compass have caused grave repercussion on petitioner’s career- 2.1. The petitioner, who was working as a Principal in Education Department issued a cheque amounting Rs. 90,000/- which went dishonoured. 2.2. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I. Act’) was filed and after the trial, by order dated 11.01.2016 passed by the trial Court (in Criminal Case No.27/2008), the petitioner was convicted and sentenced to undergo imprisonment for a period of one year apart from a fine of Rs. 90,000/-. An appeal preferred there against came to be rejected by the appellate Court per-viam order dated 22.04.2017. 2.3. The petitioner preferred a revision petition being S.B. Criminal Revision No.1071/2017 against aforenoted orders, along with an application for suspension of sentence (S.B. Suspension of Sentence (Revision) No.271/2017) which was allowed by a Coordinate Bench of this Court and the sentence awarded was suspended by order dated 21.08.2017. 2.4 By the time, the petitioner’s sentence could be suspended, he had to remain behind the bars for nine days (14.08.2017 to 23.08.2017), for which, by way of order dated 08.09.2017, the respondent No.2 placed the petitioner under suspension in exercise of purported powers under Rule 13(2) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ‘the Rules of 1958’). 2.5 An order dated 24.08.2018 in exercise of powers under Rule 19 of the Rules of 1958 came to be passed by respondent No.2 and the petitioner, who was working as Principal was scooped out of the services. 2.6 Later on, a compromise came to be entered into by the petitioner with the complainant and on the basis of such compromise, the petitioner’s conviction stood set aside by an order of a Co-ordinate Bench of this Court, dated 21.07.2022, passed in S.B. Criminal Revision No.1071/2017. 3. Mr. Paliwal, learned counsel for the petitioner argued that as a consequence of setting aside of the petitioner’s conviction, the sole ground on which the petitioner had been dismissed from services itself has lost its legs and, therefore, impugned order of dismissal from services cannot continue. 4. 3. Mr. Paliwal, learned counsel for the petitioner argued that as a consequence of setting aside of the petitioner’s conviction, the sole ground on which the petitioner had been dismissed from services itself has lost its legs and, therefore, impugned order of dismissal from services cannot continue. 4. Learned counsel vehemently argued that as a matter of fact, the respondents could not have dismissed the petitioner from services on the basis of his conviction under Section 138 of the N.I. Act, as the dispute was otherwise a dispute of civil nature. 5. It was argued that merely because a punishment has been prescribed for dishonour of cheque under Section 138 of the N.I. Act and the petitioner has been convicted, it cannot be said that his action or conduct has amounted to moral turpitude. 6. Mr. Srawan Kumar, learned counsel for the respondent firstly pointed that the dismissal order was passed on 24.08.2018, whereas the conviction came to be set aside on 21.07.2022. He argued that it was petitioner’s sentence alone, which was suspended, while the conviction continued, hence, the State was fully justified in passing the order of dismissal from service while invoking Rule 19 of the Rules of 1958. 7. Secondly, he argued that the petitioner’s conviction was set aside on the basis of compromise and his acquittal was not honourable acquittal, hence, the petitioner cannot get any relief on the basis of the order dated 21.07.2022. 8. Heard learned counsel for the parties and considered their submissions. 9. True it is, that the petitioner was convicted under Section 138 of the N.I. Act by judgment and order dated 11.01.2016 but this Court is of the firm view that a conviction under Section 138 of the N.I. Act neither constitutes a gross misconduct nor does it amount to moral turpitude so as to warrant disciplinary proceedings. In the present factual backdrop, neither it has any nexus with the petitioner’s employment nor the petitioner’s negligence or financial constraints can be treated to be unbecoming of a Government servant. By no stretch of imagination, the petitioner can be held unsuitable for public employment. 10. Solitary instance of dishonour of cheque cannot be taken to be a conduct so contumacious and reflective of extreme immorality or such a blot on his personal character so as to disentitle him from continuing in services. 11. By no stretch of imagination, the petitioner can be held unsuitable for public employment. 10. Solitary instance of dishonour of cheque cannot be taken to be a conduct so contumacious and reflective of extreme immorality or such a blot on his personal character so as to disentitle him from continuing in services. 11. Though an act of Government servant in failing to arrange funds sufficient to honour the cheque issued by him can never be endorsed by this Court, but then, we cannot lose sight of the fact that offence under Section 138 of the N.I. Act is essentially commercial in nature. Cheque issued by a person can be dishonoured on account of variety of factors/reasons, including insufficiency of funds. It is purely a private dispute -it is a civil wrong and by no stretch of imagination, the same can be treated to be a wrong against the society at large. 12. Above view of this Court derives support from the judgment of Hon’ble the Supreme Court in the case of P. Mohanraj & Ors. Vs. Shah Brothers reported in (2021) 6 SCC 258 , wherein though in a different context, Hon’ble the Apex Court expressed its opinion on the nature of proceedings under chapter XVII (S.138 to 142) of the N.I. Act, in following words:- “45 -Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part of Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim. 53 -It is clear that a Section 138 proceeding can be said to be a “civil sheep” in a “criminal wolf’s” clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable Instruments Act.” 13. In another judgment of Hon’ble the Supreme Court in the case of Kaushalya Devi Massand Vs. Roop Kishore Khore reported in (2011) 4 SCC 593 , while expressing its opinion on the nature of offence under Section 138 of the N.I. Act, the Court succinctly stated: “Para No.11 Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.” 14. In the opinion of this Court invoking provisions of Article 311 of the Constitution of India or Rule 19 of the Rules of 1958 in the event of conviction under Section 138 of N.I. Act is non application of mind, if not arbitrary exercise of powers. Dent on person’s reputation or the social stigma attached to a person’s life by being dismissed from services is much more than what could have been by conviction or imprisonment consequent to dishonour of cheque. Such dent is, as a matter of fact, a jolt to the lives of the employee and his family. 15. Dent on person’s reputation or the social stigma attached to a person’s life by being dismissed from services is much more than what could have been by conviction or imprisonment consequent to dishonour of cheque. Such dent is, as a matter of fact, a jolt to the lives of the employee and his family. 15. Admittedly, no disciplinary proceedings have been initiated against the petitioner, though he was placed under suspension and has been expelled from employment, solely because he failed to honour his financial commitment. 16. Article 311 of the Indian Constitution provides for safeguards from arbitrary removal, dismissal and reduction in rank of a civil servant. However, Article 311(2) in clauses (a) to (b) and Rule 19 of the Rules of 1958 set out cases where the necessity of holding a disciplinary enquiry can be done away with. 17. 16. Article 311 of the Indian Constitution provides for safeguards from arbitrary removal, dismissal and reduction in rank of a civil servant. However, Article 311(2) in clauses (a) to (b) and Rule 19 of the Rules of 1958 set out cases where the necessity of holding a disciplinary enquiry can be done away with. 17. It is important at this stage to set out Article 311(2) of the Constitution of India and Rule 19 of the Rules of 1958 which read as follow: Article 311(2) of the Constitution of India:-No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause 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; or (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 by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.” Rule 19 of the Rules of 1958:-Special procedure in certain cases.–Notwithstanding anything contained in rules 16, 17 and 18, (i) where a penalty is imposed on a Government Servant on the ground of conduct which has led to him conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.” 18. It is to be noted that Article 311(2)(a) so also Rule 19(i) which is couched in similar words speak of “conduct which has led to his conviction on criminal charge.” As has been opined above a conviction under Section 138 of the N.I. Act is not in stricto-sensu a conviction on criminal charge, given that by virtue of provisions of Section 143 of the N.I. Act, an offence under N.I. Act is tried summarily by virtue of what has been provided in Sections 262 to 265 of the Code of Criminal Procedure, 1973, under which procedure framing of charge is not mandatory. 19. Then again, the expression used in Article 311(2)(a) and Rule 19(i) is “conduct which has led to.” The conduct of the employee in the present case cannot be equated to conduct which otherwise leads to conviction on criminal charge as in the case of offences under Indian Penal Code or Prevention of Corruption Act. Hon’ble the Supreme Court in the case of Shanker Dass Vs. Union of India & Anr., reported in (1985) 2 SCC 358 , expressed its opinion upon power of employers under Article 311 of the Constitution to dismiss and held thus: “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. 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. 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. In the instant case, the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Considering the facts of the case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.” 20. Rule 19 of the Rules of 1958, which is the exception to the general rule and the prescribed procedure to remove or dismiss a government servant has been enacted to clothe the Disciplinary Authority with the power to remove or dismiss an employee in the situations mentioned in second proviso to clause (2) of Article 311 of the Constitution of India, in which an inquiry is not necessary. Clause (i) of Rule 19 of the Rules of 1958 which is the applicable provision in the case in hands lays much emphasis on the conduct and provides that such conduct should lead to conviction on a criminal charge. In the opinion of this Court, the dishonour of cheque does not reflect upon moral conduct of an employee. 21. Apart from the reasons given hereinabove, it is also an admitted fact that petitioner’s conviction has been set aside by a Co-ordinate Bench of this Court by its order dated 21.07.2022, though on the basis of compromise. The fulcrum or foundational fact of the petitioner’s dismissal having wiped out, the petitioner’s dismissal has fallen flat on the ground. 22. To conclude – bearing in mind, the nature of offence involved, which is predominantly civil and the offence not being the one against the society or public at large, coupled with the fact that the complainant himself has compromised the matter with the petitioner, this Court is of the considered opinion that petitioner’s dismissal in the present factual backdrop is liable to be quashed and set aside. 23. During the course of arguments, Mr. Paliwal, learned counsel for the petitioner informed that the petitioner has attained the age of superannuation on 31.01.2020 and therefore, the relief be moulded accordingly. 24. The writ petition is, therefore, allowed. 23. During the course of arguments, Mr. Paliwal, learned counsel for the petitioner informed that the petitioner has attained the age of superannuation on 31.01.2020 and therefore, the relief be moulded accordingly. 24. The writ petition is, therefore, allowed. The impugned order dated 24.08.2018 (Annexure. 4) passed by the Director, Secondary Education, Bikaner is hereby quashed and set aside. The petitioner shall be deemed to be in service until the date of his superannuation. Consequence to follow. 25. Petitioner’s case for pension, etc. be prepared and processed within a period of three months from today and the payment expedited. 26. The stay application also stands disposed of accordingly.