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2025 DIGILAW 1061 (HP)

Adam Ram v. State of Himachal Pradesh

2025-05-20

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. 1. The instant petition has been filed for following substantive reliefs: “(a) to issue a writ of certiorari or direction in nature thereof, quashing the impugned order dated 11/05/2012 and 28/10/2013 being Annexures P-1 & P-8 of the writ petition, as unconstitutional and illegal and contrary to the law. (b) to issue a writ of mandamus, appropriate writ, order or direction in nature thereof, directing the respondents to reinstate the petitioner in service w.e.f. illegal removal with all the consequential benefits and arrears alongwith interest thereon @ 18% pa. (c) to issue an appropriate writ, order or direction in nature thereof to give full justice to the petitioners in the circumstances of the case and may pass such further writ, order or orders as this Hon'ble Court may deem fit, proper, just and expedient in the circumstances of the case.” 2. The petitioner was working as Clerk in the Department of Public Works since his appointment on 06.04.2004. During the intervening night of 10.04.2007 and 11.04.2007, the petitioner inflicted blow on the abdomen of Gopal Dass with a broken glass beer bottle, which caused the death of Shri Gopal Dass. The petitioner was prosecuted for offence under Section 302 of Indian Penal Code. Learned Additional Sessions Judge, Kinnaur at Rampur, Himachal Pradesh convicted the petitioner for offence under Section 304 Part II vide judgment dated 29.07.2011 in Sessions Trial No.4-AR/7 of 2008/2011 and was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/- and further in default to undergo simple imprisonment for one year. The appeal preferred by the petitioner before this Court under Section 374 of the Code of Civil Procedure also was dismissed by this Court vide judgment dated 26.06.2012 in Criminal Appeal No.277 of 2011. Conviction of petitioner under Section 304 Part II IPC was maintained. The sentence, however, was reduced to three years rigorous imprisonment instead of five years rigorous imprisonment. 3. On 30.03.2012, a memorandum was served upon the petitioner by the 2 nd respondent, whereby the petitioner was afforded an opportunity to represent against the proposal to impose major penalty of removal from service. The sentence, however, was reduced to three years rigorous imprisonment instead of five years rigorous imprisonment. 3. On 30.03.2012, a memorandum was served upon the petitioner by the 2 nd respondent, whereby the petitioner was afforded an opportunity to represent against the proposal to impose major penalty of removal from service. The petitioner submitted his reply stating, inter alia, that he had filed the appeal against the judgment passed by learned Additional Sessions Judge, Kinnaur at Rampur and till its final disposal, no adverse or punitive action should be taken against him. The competent authority i.e. the 2 nd respondent vide order dated 11.05.2012 imposed the penalty of removal from service against the petitioner by exercising powers under Rule 19(1) of the CCS (CCA) Rules, 1965. 4. The petitioner was released on 15.08.2013 after undergoing the sentence. He made a representation to 2 nd respondent on 11.09.2013 seeking reconsideration of his case, but the same was rejected by 2 nd respondent on 28.10.2013. 5. The petitioner thereafter preferred an appeal to the Secretary PWD, Himachal Pradesh on 27.11.2013. His appeal remained undecided for considerable time and in such circumstances, the petitioner filed the instant petition on 03.08.2014. After filing the instant petition, the appeal of the petitioner was decided by Principal Secretary, PWD, Himachal Pradesh vide order dated 29.09.2014 and the same was dismissed. 6. The petitioner has filed the instant petition with the grievance that the 2 nd respondent while imposing the penalty of removal from service against the petitioner was swayed only with the fact that the petitioner had been convicted for a criminal charge. According to the petitioner, the 2 nd respondent had failed to consider the nature and gravity of allegations alleged and proved against the petitioner. He contends that the incident was pure accident without any premeditation. Even the learned Additional Sessions Judge, Kinnaur at Rampur and this Court had categorically held that the petitioner had no intention to kill Gopal Dass. He further alleges that the punishment inflicted upon him is grossly excessive and disproportionate. 7. The respondents have filed the reply. It is submitted that the conduct of the petitioner was unbecoming of Government Servant which rendered his retention in Government service undesirable. The disciplinary authority had considered the infliction of major penalty upon the petitioner after thoughtful consideration of facts and attending circumstances. 7. The respondents have filed the reply. It is submitted that the conduct of the petitioner was unbecoming of Government Servant which rendered his retention in Government service undesirable. The disciplinary authority had considered the infliction of major penalty upon the petitioner after thoughtful consideration of facts and attending circumstances. The petitioner was afforded an opportunity of being heard before penalizing him. The appellate authority also had thoughtfully considered the entire case of the petitioner and through a detailed speaking order, the appeal of the petitioner was dismissed. 8. I have heard the learned counsel for the parties and have also gone through the record carefully. 9. Learned counsel for the petitioner would contend that the impugned orders were unsustainable having been passed by the 2 nd respondent without looking into the conduct of the petitioner that led to his conviction on a criminal charge. He also submitted that learned Additional Sessions Judge, Kinnaur at Rampur had held that there was no prearranged plan on the part of the petitioner to cause death of Gopal Dass and from all the facts and circumstances it became difficult to conclude that the petitioner had requisite intention to cause death or such bodily injury as was likely to cause death of the deceased. Rather, in view of the nature of injury and kind of weapon used by the petitioner it could be concluded that the petitioner had requisite knowledge that by inflicting injury on the abdomen of the deceased with broken glass beer bottle, he was likely to cause death of the deceased. He also placed reliance upon the observations made by the appellate Court to the effect that there was no previous enmity between the petitioner and the deceased and the factum of petitioner having intention or predetermination to cause death was not made out. Reliance has been placed on the judgment passed by learned Single Judge of this Court in Hardyal Singh vs. State of H.P. & others, 1976 ILR (HP) 766 [decided on 03.08.1976] . Reliance has been placed on the judgment passed by learned Single Judge of this Court in Hardyal Singh vs. State of H.P. & others, 1976 ILR (HP) 766 [decided on 03.08.1976] . Reliance has also been placed on the judgment passed by Hon’ble Division Bench of this Court in CWP No. 1384 of 2001, titled Taj Deen vs. HRTC & others , 2008 (3) SLC 485 [decided on 10.04.2008] to assert that in view of the omission in not considering the case of the petitioner in right perspective before infliction of major penalty, the impugned orders were liable to be quashed and set aside. 10. On the other hand, learned State Counsel has supported the impugned orders. He submitted that the instant petition was premature as the petitioner had not waited for the outcome of service appeal filed by him before the 1 st respondent. He further submitted that in absence of any challenge to the order passed by the appellate Authority, the petition was not maintainable. On merits, he contends that the disciplinary authority as well as the appellate authority had considered the merits of the case and the conduct of the petitioner as was evident from the contents of judgments passed by learned Additional Sessions Judge, Kinnaur at Rampur as also this Court. 11. Record reveals that the 2 nd respondent had served the petitioner with a memorandum dated 30.03.2012, wherein a representation was sought from the petitioner against the proposal of disciplinary authority to impose penalty of removal from service in exercise of power under Rule 19 of the CCS (CCA) Rules, 1965. It was clearly mentioned in the memorandum that the disciplinary authority had proposed to award appropriate penalty under Rule 19 of the CCS (CCA) Rules, 1965 taking into consideration the gravity of charges. It was also clearly mentioned that the disciplinary authority had arrived at provisional conclusion after careful consideration of the judgment passed by learned Additional Sessions Judge, Rampur a copy of which was also annexed along with memorandum. In response, the petitioner did not make any submission against the proposal to impose major penalty against him save and except that no adverse order should be passed against him till the pendency of his appeal before this Court. Thereafter, the impugned order dated 11.05.2012 was passed by the 2 nd respondent as disciplinary authority. In response, the petitioner did not make any submission against the proposal to impose major penalty against him save and except that no adverse order should be passed against him till the pendency of his appeal before this Court. Thereafter, the impugned order dated 11.05.2012 was passed by the 2 nd respondent as disciplinary authority. This order clearly reveals that the 2 nd respondent had considered the contents of the judgment passed by learned Additional Sessions Judge, Kinnaur at Rampur and even an extract thereof was reproduced, which clearly noted as under: "On the other hand, in view of the nature and kind of the weapon used by the accused and the part of the body of the deceased where the injury was inflicted it can be safely concluded that the accused person had requisite knowledge that by inflicting injury on the abdomen of the deceased with broken glass bottle, he was likely to cause death of the deceased. Therefore, he is guilty of offence under Section 304 part II of IPC." 12. Thus, the contention of the petitioner that the 2 nd respondent had imposed the major penalty vide order dated 1.05.2012 without considering the conduct of the petitioner is not substantiated. Moreover, now the order dated 11.05.2012 stands merged in the order of appellate authority passed on 29.09.2014 in the service appeal of the petitioner. This order again reveals due consideration of the facts of the case by the appellate authority. 13. The judgments relied upon by petitioner in Hardyal Singh and Taz Deen (supra) cannot improve his case for the reason that those were passed in their own facts. In Hardyal Singh (supra), learned Single Judge of this Court had found that the order passed by the punishing authority was simply because the petitioner therein was convicted by Court of law. In the case in hand, as noticed above, the disciplinary authorities had gone through the judgments passed by learned Additional Sessions Judge, Kinnaur at Rampur and had thereafter decided as to the conduct of the petitioner that led to his conviction. The appellate authority after giving due consideration to the order passed by the disciplinary authority has also considered the implication of Article 311 of the Constitution of India to the facts of the case. The appellate authority after giving due consideration to the order passed by the disciplinary authority has also considered the implication of Article 311 of the Constitution of India to the facts of the case. In Taz Deen (supra), again Hon’ble Division Bench of this Court had considered the order inflicting penalty to be lacking in legal requirements, whereas it is not so in the instant case. 14. Even this Court in the instant petition is competent to arrive at a conclusion as to the proportionality of punishment inflicted upon the petitioner vis a vis his conduct that led to the conviction of a criminal charge. In Union of India & another vs. Tulsiram Patel, 1995 (3) SCC 398 , the constitutional Bench of Hon’ble Supreme Court has observed in Para 127 as under: “Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgement of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan’s Case ( AIR 1975 SC 2216 ). This, however, has to be done by it ex-parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant’s conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate his question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court’s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India, (1985) 2 SCC 358 : AIR 1985 SC 772 this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.” [Emphasis added] 15. On thoughtful perusal of entire material on record, it appears that the petitioner is indulging in self-acclamation on a misconceived notion. A picture is being projected as if the incident for which the petitioner was implicated was only an accident. It is forgotten that the petitioner has been held guilty for culpable homicide not amounting to murder. On thoughtful perusal of entire material on record, it appears that the petitioner is indulging in self-acclamation on a misconceived notion. A picture is being projected as if the incident for which the petitioner was implicated was only an accident. It is forgotten that the petitioner has been held guilty for culpable homicide not amounting to murder. Due knowledge as to the result of his action, being dangerous to human life, has been attributed to him by both the Courts i.e. learned Additional Sessions Judge, Kinnaur at Rampur and this Court. More importantly, it was a case where as many as 23 injuries were found on the person of deceased. Weapon of offence was a broken glass beer bottle. The seat of the injury was abdomen. It is clearly revealed from the postmortem report that one of the injuries was “13 Cms loop of small intestine lying outside the abdominal wall from a wound with perforation at 6 Cms level. The loop was found grossly hemorrhagic and at places parchmentised.” In such circumstances, the petitioner cannot claim his conduct to be not serious. No fault can be found with the decision making by the disciplinary as well as the appellate authority as the aforesaid grave conduct could not have been ignored. [Emphasis is mine] 16. The objections raised by learned State Counsel that the petition was not maintainable in absence of challenge to the order of appellate authority needs rejection as the principle of lispendens will apply. As regards the maintainability of petition, again it can be noticed that the appellate authority had not passed any order on the service appeal of petitioner for a considerable long period and in such circumstances, the filing of this petition by the petitioner is certainly maintainable. 17. In result, I find no merit in the petition and the same is accordingly dismissed along with pending applications, if any.