Hardyal Singh vs The State of H.P. etc.

T.U. Mehta, J.—The Petitioner being aggrieved by his removal from service as a dak runner in the Forest Department pursuant to his conviction under sections 447, 147 and 149 of the Indian Penal Code, has preferred this writ petition with a prayer that the impugned order of his removal, which is dated 28.2.1669, should be quashed and he should be reinstated in service with effect from the date of his removal.

Short facts of the case are that the Petitioner joined service of the Forest Department as a dak runner on 4.1.1954. He was confirmed and made permanent on that post by office order No. 61/1965-66 dated 14.9.1965. It is found that before his confirmation, he was convicted on 22.5.1961 for the offences under sections 447, 147 and 149 of the I.P.C. by the court of the Ilaqua Magistrate, Bilaspur. The learned Magistrate on his conviction sentenced the Petitioner to suffer rigorous imprisonment for six months and the payment of fine of Rs. 200/-. Against this order of conviction and sentence the Petitioner preferred an appeal before the Court of Sessions Judge, Bilaspur. The said court confirmed the conviction but reduced the sentence to imprisonment till the rising of the court and the payment of fine of Rs. 50/- only. This order seems to have been passed by the Sessions Court in the year 1962. As stated above, about three years after the confirmation of this conviction by the Sessions Court, the services of the Petitioner were confirmed and he was made permanent on the post which he was holding.

It is found that in the month of February, 1961 i.e. about eight years after his conviction by the Magistrate, the Divisional Forest Officer, Bilaspur Forest Division, Himachal Pradesh passed the impugned order of removal of the Petitioner from service because he was convicted by the court in a criminal case. This is the order which is impugned in this writ petition. In order to appreciate the nature of this order it would be necessary to state its terms. It runs as under:

The Superintendent of Police Bilaspur, District Bilaspur has informed this office that you were arrested by the S.H.O. Sadar in case F.D.R. No. 26 dt. 2.5.1967 u/s 447/ 147/149 I.P.C. on 7.7.1957 and were released on bail the same time. The challan of the case was put up in the Court on 20.9.57 and you were sentenced to 6 months rigorous imprisonment and fine of Rs. 200/- on 22.5.1961 from the Court of the Ilaqua Magistrate, Bilaspur. It has been further reported that on appeal from you the sentence was reduced to Rs. 50/- as fine and imprisonment till the rising of the Court from the Court of the Sessions Judge, Blaspur during 1962.

Under the orders of the Government a convict cannot continue in Government service, and it was, therefore incumbent on you to have informed this office about your conviction, punishment etc., but you appear to have intentionally suppressed, these facts for which you are, yourself, responsible for the....

Being a convict you cannot be allowed to continue the service according to Government Rules and it is, hereby ordered to discharge you from the post of Dak Runner w.e.f. the date of issue of this office order.

The date of this order appears to be 28.2.1969.

Against this order a departmental appeal was preferred before the Conservator of Forests, Bilaspur by, the Petitioner. However, this appeal was dismissed by the Conservator of Forests on 10.8.1970 by passing the following order:

Reference appeal of Shri Hardyal Singh ex--Dak Runner dated 18.3.69 against the order No. 3244, dated 28.2.1969 by D.F.O. Bilaspur.

Your appeal has been considered and is hereby rejected.

Against this order a further petition was preferred by a Petitioner before the Chief Conservator of Forests. But even this petition was disposed of by the Chief Conservator of Forests in the following words:

Appeal of Shri Hardyal Singh ex-Dak Runner considered and rejected.

This order of the Chief Conservator of Forests is dated 10.1.1971.

Thereafter the Petitioner approached this Court by way of this writ petition which is filed on 13-4-1971.

The only contention which is raised by the learned Advocate for the Petitioner is that even though in this case no departmental enquiry was necessary in view of the fact that the Petitioner was convicted by a court of law, the punishing authority ought to have applied its mind to the facts of the case before inflicting any punishment on the Petitioner. It was contended that the punishing authority has not applied its mind to the facts of the case with a view to consider whether any lesser punishment was required. Shri Chitkara, learned Advocate for the Petitioner, contended that though under Rule 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, the procedure contemplated by Rules 14 and 18 is not required to be adopted in the case of conduct which has lead to the conviction of the Petitioner on a criminal charge, it was necessary for the punishing authority to consider which out of the minor and major punishments contemplated by Rule 11 of the said Rules was required to be inflicted. However, if a reference is made to the order passed by the punishing authority, it will be found that the punishment is inflicted merely because the court has convicted the Petitioner for certain offences. In support of his submission that the punishment of removal does not necessarily follow from the mere fact that a Government servant has committed some criminal offence irrespective of the nature thereof, Shri Chitkara has put reliance upon two decisions given by the High Court of Punjab and Haryana. The first decision on which the reliance was placed is the one given by a Division Bench of that Court in Rajinder Singh v. The State of Punjab and Anr. reported in 1969 (3) S.L.R. 754 and the next decision is a Full Bench decision of that very Court given in Om Parkash v. The Director postal Services reported in 1971 (1) S.L.R.648.

As against this, it was contended on behalf of the State by the learned Advocate-General that the Petitioner was convicted not for a trivial or a technical offence, but for serious offences such as offences u/s 447 (tres-pass), Section 147 (roiting) and Section 149 (being member of any unlawful assembly) of the I.P.C. and therefore, the punishing authority was justified in inflicting the departmental punishment of removal from service as a matter of course on being found that the said conviction was ultimately upheld in a court of law. Relying upon a Full Bench decision of the Delhi High Court in Director of postal Services v. Daya Nand reported in 1972 S.L.R 325 the learned Advocate-General contended that whenever a Government Servant is convicted of a criminal offence which is not trivial or technical the punishment of dismissal would be inflicted on the convict as a matter of course. According to the Advocate-General, therefore, the above two decisions given by the Punjab High Court should not be followed and the view taken by the Delhi High Court should be preferred.

The learned Advocate-General further contended that considering the fact that the punishing authority has detailed in paragraph 1 of its order, the fact that the Petitioner was convicted for certain offences, is sufficient to show that it applied its mind to the nature of the offence committed by the Petitioner and, therefore, it cannot be said that the punishment of removal of the Petitioner from service was awarded by the punishing authority without applying its mind.

So far as the last mentioned contention of the Advocate-General is concerned, I find that it is patently clear from the order passed by the punishing authority that the removal of the Petitioner from service was ordered simply because he was convicted by a court of law and because according to the said authority the Petitioner could not be allowed to continue in service "according Government rules". In other words the punishing authority seems to have inflicted the punishment of removal of the Petitioner from service merely because it was found that the Petitioner was convicted by a court of law. There is nothing in the order to suggest that the punishing authority had in any manner applied its mind to the facts relating to the incident which led to the conviction of the Petitioner. It had not considered what part the Petitioner had played in the commission of the offence. One of the offences for which he had been convicted is the offence contemplated by Section 149 I.P.C. which contemplates constructive liability of all those who are the members of an unlawful assembly for the substantive offences committed by other members of the same assembly. Therefore the punishment for the said offence would depend much upon the actual part played by the Petitioner as a member of the said assembly. The impugned order does not show that the punishing authority had taken any of these facts into consideration before selecting the extreme punishment of removal from service. In my opinion, therefore, it is quite clear that the punishment is awarded by the authority concerned simply because the said authority was of the opinion that the order of removal must ipso facto flow from a conviction for a criminal offence irrespective of its nature. Even the appellate and revisional authorities do not seem to have applied their mind to this aspect of the matter. It need not be said that the Indian Penal Code contemplates the offences of different types. All offences are not equally serious. Even Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules contemplates different types of punishment, some of which are minor punishments and some are major punishments. These punishments are to be inflicted only in accordance with the nature and gravity of the offence. Therefore, at the time of making the selection of a particular form of punishment, the authority concerned should necessarily apply its mind to the facts of the case in order to deter mine what quantum of punishment would meet the ends of justice. Such a mind is obviously not applied by the punishing authority in this case as is fully evident from the terms of the impugned order.

The Division Bench of the High Court of Punjab in the above referred case of Rajinder Singh has observed that neither the language of Article 311(2) of the Constitution nor the relevant service rules indicate that as soon as a public servant is convicted on a criminal charge, he must suffer one of the prescribed punishments. It is further observed on that basis that before inflicting any of the three major punishments namely, dismissal, removal or reduction in rank, the competent authority has to apply its mind to the facts of the case to examine the conduct of public servant concerned which has led to his conviction and to determine the nature and quantum of punishment which his conduct calls for. This view of the Division Bench has been fully endorsed by a Full Bench of that Court in the subsequent case of Om Parkash (supra).

As against this the Delhi High. Court has observed in the above referred Full Bench case of Director of Postal Services v. Daya Nand (supra) as under:

...But in the eye of law and morals a conviction on a criminal charge is always a more serious punishment than dismissal. The only exception is that certain trivial or technical offences such as an offence against the rule of the road or of traffic may even in the eye of law and morality be less serious than the misconduct of a person in his capacity as a Government servant. Barring this exception, the punishing authority is entitled to take the view that the conduct resulting in conviction of the criminal offence is serious enough to attract a major penalty such as dismissal. Taking into account the standard of behaviour required of a Government servant, it is inconceivable that a person convicted of a criminal offence can be allowed to remain in Government service. Therefore, whenever a Government servant is convicted of a criminal offence (unless in an exceptional case the charge is trivial or technical one like a traffic offence) the punishment of dismissal would be inflicted on the convict as a matter of course. It is only in theory that it is true that the punishing authority has to consider which particular punishment should be imposed on the convicted person. In practice, however, continuance of a convict in Government service would be always regarded as undesirable unless the conviction was for a technical offence.

(emphasis supplied).

With great respect to the learned Judges of the Full Bench of the Delhi High Court, I find myself unable to agree with the view taken by them in the underlined portion of the above extract of the judgment. If it cannot be challenged that all offences are not of the same character and should not be visited by the same punishment, irrespective of their nature, and if it is further found that the law itself stipulates major and minor punishments, it is difficult to conceive how the departmental punishment of dismissal must follow as a matter of course in every type of conviction by courts in a criminal case. To say so would be to fetter the discretion of the department itself. There would be cases in which a Government servant would be of an exemplary good character, efficient and honest in the discharge of his duties, and desirable for all purposes to be retained in Government service in the interst of the administration itself. If such a Government servant happens to be entangled in some personal quarrel and is found to have committed the offence such as the one u/s 323 or a simple tres-pass, should we bind the hands of the administration to remove him from service irrespective of the nature of the offence committed by him or irrespective of the actual part played by him in the commission of the said offence. It is well known that in some public agitation which assumes a violent form even a person who happens to be accidentally there at the place of the incident is some times found constructively liable u/s 149 of the Indian Penal Code, if he is not able to explain properly his presence at the place where the riot has taken place. If such a person happens to be a Government servant, and is not able to successfully defend in a court of law in the criminal case instituted against him, can it be said that the moment department finds that he is convicted by a court of law, his removal or dismissal from service must necessarily follow. It cannot be said that the offence u/s 149 I.P.C. is of a technical or trivial nature and, therefore, if the ratio of the reasoning which has appealed to the learned Judges of the Delhi High Court is to prevail, the Government would be deprived of its discretion to retain its servant in service even though the said retention is otherwise found to be in public interest. It is undoubtedly true that the conviction of a person in a criminal case furnishes good evidence about his "bad" conduct but even a bad conduct has its degrees. A conduct can be bad, it can be worse, and it can also be worst. If that is so, and if law permits different types of punishments for different offences, a bad conduct cannot be equated with the worst one in the matter of punishment. In these circumstances, I am of the opinion, that the view taken by the Punjab High Court is more pragmatic in its approach and more conducive to the interest of justice.

It cannot be disputed, and the same is not disputed, by the learned Advocate for the Petitioner during the hearing of this case, that in case of court conviction, neither Article 311 of the Constitution, nor Rule 19(1) contemplates either a regular enquiry or a show cause notice. I agree with the learned Advocate General that in such cases where there is a court conviction on a criminal charge no further enquiry at all is needed. However, I do believe that what is needed is the application of mind as regards the selection of a correct punishment having regard to the peculiar facts of each case. Therefore, if the punishing authority has failed to apply its mind to the facts of the case with a view to select a proper form of punishment, the ultimate order which it has passed must fail on that ground.

In this case, as already pointed out by me, neither the punishing authority nor the appellate authority nor the revising authority has applied its mind to the facts of the case with a view to determine what would be the correct punishment which would meet the ends of justice as well as the interest of administration. The impugned order stems from a mechanical approach, namely, that the Petitioner should be removed from service simply because he is convicted. The order does not show what facts weighed with the authority concerned to resort to the extreme punishment of this type. The result, therefore, would be that the impugned order should be set aside and to that extent the writ should be allowed. The Petitioner has prayed for a writ ordering his reinstatement in service, but looking to the facts of the case this prayer is not allowed. Since the impugned order of the Petitioner''s removal from service is set aside and quashed, it will be open to the authorities concerned to consider the facts of the case and to pass necessary order of punishment afresh, if so desired.

The rule which is issued in this writ is accordingly made absolute without any order as to costs.