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2023 DIGILAW 1491 (RAJ)

Puna Ram Khurkhuriya v. State of Rajasthan

2023-08-04

DINESH MEHTA

body2023
ORDER : 1. By way of the present writ petition, the petitioner has challenged the order dated 21.09.2020 whereby he has been dismissed from the services by invoking powers under Rule 19 of The Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as 'Rules of 1958'). 2. The facts narrated briefly are that the petitioner was appointed as Teacher Gr.II on 01.07.1995, whereafter he was promoted as Lecturer (Hindi). During the course of his employment an FIR for offences under Section 341, 323, 325/34 of Indian Penal Code being FIR No. 312/2008 came to be registered against him on 29.12.2008. 3. On 14.07.2020, a disciplinary inquiry was initiated against the petitioner essentially for the reason that the petitioner had not disclosed the factum of registration of the FIR and pendency of criminal case against him. A memorandum of charges framing two charges was served on the petitioner. 4. The petitioner filed a reply to the disciplinary proceedings and submitted that he has neither concealed any fact nor had he made misrepresentation. 5. Before the disciplinary proceedings could advance, the petitioner has been dismissed from the services vide order dated 21.09.2020 by the respondent No. 2 while exercising powers under Rule 19 of the Rules of 1958. The order of petitioner's dismissal records that as the petitioner has been convicted vide order dated 10.01.2020 passed by the Civil Judge & Judicial Magistrate, Merta for the offence under Section 341, 323, 325/34 of the IPC, his continuation in the service is undesirable. 6. Oppugning the order dated 21.09.2020, the present writ petition has been preferred. A Coordinate Bench of this Court has passed an interim order in petitioner's favour on 05.10.2020 and accordingly, the impunged order dated 21.09.2020 dismissing petitioner from the services has been kept in abyeance. 7. The petitioner is continuing his services per force the interim order passed by this Court. 8. The petitioner filed an appeal against the order of conviction dated 10.01.2020 and during the pendency of the present writ petition, learned Sessions Judge, Merta per-viam his order dated 24.02.2022 has set aside the petitioner's sentence and has given him benefit of section 4 of The Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act of 1958'). 9. The petitioner filed an appeal against the order of conviction dated 10.01.2020 and during the pendency of the present writ petition, learned Sessions Judge, Merta per-viam his order dated 24.02.2022 has set aside the petitioner's sentence and has given him benefit of section 4 of The Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act of 1958'). 9. The petitioner has placed on record the order dated 24.02.2022, passed by the appellate Court alongwith additional affidavit and prayed that the order impugned be quashed and set aside on the solitary ground that the conviction has been set aside. 10. Learned counsel for the petitioner argued that the order impugned is against the principles of natural justice as no opportunity of hearing was afforded to the petitioner. While iterating that disciplinary proceedings have already been initiated against the petitioner, he argued that, there was no reason for not proceeding with the inquiry and dismissing him from the services, particularly when neither the offence was committed during the course of employment nor did it amount to moral turpitude. 11. Without prejudice to above he argued that petitioner's dismissal deserves to be set aside on sole count that the conviction itself has been set aside and benefit of Section 4 of the Act of 1958 has been given and consequently the disqualification (if any) attached to the conviction has ceased to exist. 12. Mr. Solanki, learned counsel for the petitioner relied upon the judgments passed in the case of Sube Singh Yadav v. State & Ors. S.B. Civil Writ No. 13452/2012, decided on 30.11.2018, Amit Singh Rathi v. State & Ors. S.B. Civil Writ Petition No. 2205/2021, decided on 10.03.2023 and Badri Ram v. State & Ors. S.B. Civil Writ Petition No. 14681/2019, decided on 14.03.2023. 13. Mr. Sarwan Kumar, learned counsel for the respondent-State on the other hand submitted that the petitioner's conviction has been affirmed however, sentence has been set aside in view of the concession given by the petitioner and benefit of Section 4 of the Act of 1958 has been given. He argued that it cannot be said that the petitioner's conviction has been set aside. 14. He argued that it cannot be said that the petitioner's conviction has been set aside. 14. Learned counsel argued that whether to engage or to keep an employee who has been convicted in service is a discretion of the employer and if the State does not want to retain a person with criminal antecedents, he cannot be thrusted upon the State. 15. Heard learned counsel for the parties and perused the material available on record including the order dated 24.2.2022 whereby the petitioner has been given benefit of Section 4 and 12 of the Act of 1958 and his sentence has been set aside. 16. True it is, that the petitioner's conviction has not been set aside on its merit but the same has been done on the basis of concession given by the appellants wherein they have dropped their challenge to the conviction. While deciding the petitioner's appeal, though the Court has affirmed the conviction but has given benefit of Sections 4 and 12 of the Act of 1958, while clearly indicating that the effect of conviction will not affect the petitioner's service career. 17. In the opinion of this Court, when the petitioner's sentence has been set aside and the benefits of Sections 4 and 12 of the Act of 1958 have been given, it cannot be said that the disqualification still continues. The reason for the petitioner's disqualification/conviction ceases to continue and the basis for dismissal goes away. 18. As the sole reason for which the petitioner was dismissed from service was the conviction and since the petitioner has been given benefit of Section 4 of the Act of 1958, the very edifice of the dismissal has shattered resulting in falling of the impugned order flat on the ground. 19. The present writ petition is therefore, allowed and the order dated 21.09.2020 is hereby quashed and set aside. 20. Needless to observe that the respondent-State shall be free to revive the disciplinary proceedings which were initiated against the petitioner by way of memorandum of charges dated 14.07.2020. The same will proceed with in accordance with law. 21. Stay application stands disposed of.