Darshan Singh Handa vs State of Punjab and Others

Tejinder Singh Dhindsa, J.

CM. No. 11639 of 2013

Application is allowed as prayed for.

Annexures P-8 to P-11 are taken on record.

CWP No. 15143 of 2013

The petitioner, who was working on the post of Clerk under the Directorate of Industries & Commerce, State of Punjab, has filed the instant writ petition impugning the order dated 6.7.2012 (Annexure P-5), passed by the Director of Industries & Commerce, Punjab, whereby he has been dismissed from service. Further challenge is to the order dated 23.3.2013 (Annexure P-7) passed by the Appellate Authority i.e. the Principal Secretary, Govt. of Punjab, Department of Industries & Commerce affirming the order passed by the Punishing Authority. Learned counsel appearing for the petitioner has vehemently argued that prior to passing of the impugned orders no departmental proceedings had been initiated against the petitioner and the extreme penalty of dismissal from service has been imposed upon him solely on account of the conviction of the petitioner under the provisions of the Prevention of Corruption Act, 1988. Counsel would argue that mere conviction does not entail automatic dismissal. It has further been submitted that even an appeal preferred against the order of conviction is pending adjudication before this Court and as such there was no justification with the respondent-department to have dismissed the petitioner from service without even awaiting the outcome of such appeal. Still further, counsel argues that the respondent-department has not afforded any weightage for the 33 years of service that the petitioner has already rendered till the date of passing of the order of dismissal.

Having heard learned counsel for the petitioner at length and having perused the pleadings on record, I am of the considered view that no interference is called for at this stage.

There would be no dispute as regards the proposition that mere conviction does not entail automatic termination of service. It is obligatory for the Punishing Authority to take into account the conduct of the employee which has led to his conviction and also to consider as to whether such conduct would warrant the imposition of extreme penalty of dismissal. Such dictum of law was laid down by the Hon''ble Supreme Court in case of Union of India and Another Vs. Tulsiram Patel and Others, .

The facts of the present case, however, would reveal that the petitioner stands convicted by the Special Judge, Ferozepur vide judgment dated 7.3.2012 in case FIR No. 50 dated 28.4.1993 under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. The petitioner as also another co-employee have been found guilty of accepting illegal gratification of Rs. 4,000/- and have been sentenced to undergo Rigorous Imprisonment for a period of 2 years each and to pay a fine of Rs. 2500/- each u/s 7 of the Prevention of Corruption Act, 1988 and further sentenced to undergo Rigorous Imprisonment for a period of 2 years each and a fine of Rs. 2500/- each u/s 13(2) of the Prevention of Corruption Act, 1988. A perusal of the impugned order dated 6.7.2012 (Annexure P-5) passed by the Punishing Authority would make it apparent that the judgment of conviction dated 7.3.2012 not only has been noticed but a finding has been recorded that the conduct of the petitioner is reprehensible and condemnable. Still further, the Punishing Authority has taken a view that the conduct of the petitioner leading to his conviction is such that his further retention in service is not in public interest. As such, the obligation cast upon the Punishing Authority to have considered the gravity of the offence as also the conduct of the petitioner leading to his conviction, has been duly discharged and it is only thereafter that the order of dismissal dated 6.7.2012 (Annexure P-5) was passed.

Learned counsel has also raised a plea of discrimination. He would advert to Annexures P-8 to P-11 to contend that one Sh. Avinash Kumar, co-accused, who was also an employee along with the petitioner in the same very department and had also been convicted in the light of same very judgment passed by the Special Judge, Ferozepur dated 7.3.2012, had on the other hand been given the benefit of promotion and had since retired. Even such argument is totally fallacious. The co-accused Sh. Avinash Kumar had been promoted to the higher post on 11.12.2000 and he stood superannuated on 30.6.2002, whereas the judgment of conviction is dated 7.3.2012. The plea of discrimination, as such, would not be available to the petitioner.

The contention raised by learned counsel that since the appeal filed against the order of conviction is pending before this Court, it would have been appropriate for the Punishing Authority to have awaited the outcome of the same, is also without merit. In the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, the Hon''ble Supreme Court had considered such situation and had held that once a govt. servant is convicted of a criminal charge, appropriate course of action would not be to await the outcome of the appeal or revision, as the case may be but to proceed in the matter in the light of Article 311 of the Constitution of India. It was further observed that, if, the govt. servant/accused is acquitted on appeal or other proceedings, the order of punishment, be it termination/dismissal can always be revised and such govt. servant would be open to be reinstated in service. The observations of the Hon''ble Supreme Court were in the following terms:-

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 Shankar Dass Vs. Union of India (UOI) and Another,

Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from services "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.

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 proceedings, the matter can always be reviewed in such a manner that he suffers no prejudice.

As such, for the reasons recorded above, I am not inclined to interfere in the matter and the present writ petition is, accordingly, dismissed. However, since the order of dismissal dated 6.7.2012 (Annexure P-5) dismissing the petitioner from service is based solely on conviction and an appeal against the order of conviction is pending final adjudication, it shall always be open for the petitioner to approach the Court afresh and seek reinstatement in the eventuality of the petitioner earning acquittal. Petition dismissed.