Dina Bandhu Mondal vs Bank of India and Others

A.K. Banerjee. J.

The writ petitioner was convicted by Criminal Court under sections 420, 468 and 120B of the Indian Penal Code. Against the order of conviction an appeal was preferred where the writ petitioner was granted bail. After the order of conviction, the writ petitioner was served with show-cause notice dated 2nd December, 2000 appearing at page 20 of the writ petition, the writ petitioner challenged the said show-cause notice on the ground since he had granted ball and since the subject issue is pending in appeal the show-cause noticed bad and is liable to be quashed.

Mr. R.N. Mazumdar, learned counsel, appearing on behalf of the respondent authority, submits that since the order of conviction has already been passed against the writ petitioner pendency of an appeal cannot operate as bar in proceeding against the writ petitioner in terms of the said show-cause notice. In support of his contention, Mr. Mazumdar, learned Advocate, has relied on a decision of the apex Court reported in Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, and an unreported decision of this Court in the case of Shib Nath Bodhak v. The Bank of India & Ors. Headnote ''A'' of the apex Court decision has been relied upon by Mr. Mazumdar which is quoted as follows :

"Taking proceedings for and passing orders of dismissal, removal or reduction in rank of a Government servant who has been convicted by a criminal Court is not barred merely because the sentence or order is suspended by the appellate Court or on the ground that the said Government servant-accused has been released on bail pending the appeal. It cannot be said 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. The more appropriate course in all such cases is to take act in 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 tilt 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. 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 in such that it deserves any of the three major punishment mentioned in Article 311(2)".

The apex Court was of the view that even if the delinquent suffers the order of dismissal due to such conviction and even if he succeeds ultimately in appeal he has right to be reinstated. The apex Court was of the view that since the conviction is a serious offence it is not desirable that the delinquent should continue in service.

Mr. Saktinath Mukherjee, learned senior counsel, appearing for the writ petitioner while distinguishing the apex Court judgment, submits that since by an Interim order the writ petitioner has already been directed to be in deemed suspension without any pay no prejudice is caused to the respondent authority and the apprehension of the apex Court as expressed in the said Judgment (supra) can be taken care of.

With due respect, in my view, the apex Court decision was not on the question of prejudice rather it was a question of principle. A Government servant charged with serious criminal offence under the Indian Penal Code has already been convicted by appropriate criminal Court, mere pendency of an appeal cannot operate as a bar to proceed against him in terms of the show-cause notice issued against him. If he is subsequently acquitted by the Court of Appeal he has remedy if he suffers from any order of dismissal in the meantime.

In such view of the matter, the writ petition must fall.

AST 4371 of 2000 is dismissed. Interim order earlier passed on 12th December, 2000 is vacated.

After the judgment is pronounced Mr. D. Mukherjee, learned Advocate, appearing for the writ petitioner, prays for an extension of time to submit reply to the show cause notice. Such prayer is not opposed by Mr. Mazumdar, learned Advocate, appearing for the respondents.

Hence, at the instance of the writ petitioner the time to file reply to the show cause notice is extended for a period of fortnight from date.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties on usual undertaking.

Petition dismissed