Jaganath Panigrahi vs Collector

R.N. Misra, J.—On 13th of September, 1973, Petitioner was communicated the following order:

Sri Jaganath Panigrahi, Amin, Parlakhemundi Tahasil (on leave) is dismissed from Government service with immediate effect as he has been convicted in G.R. Case No. 1111 of 1959 u/s 409, Indian Penal Code.

Admittedly Petitioner had been convicted in the aforesaid case, but the said conviction was prior to his appointment as Amin with effect from 1-7-1964. Petitioner challenges the order of dismissal as vitiated on account of want of enquiry as contemplated under Article 311(2) of the Constitution. Admittedly no enquiry was done, but the opposite party has taken the stand that the Proviso to Article 311(2) of the Constitution was not attracted and, therefore, an enquiry was not warranted.

Article 311(2) of the Constitution provides:

No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being beard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such enquiry:

Provided that this clause shall not apply

(a) where a person is dismissed or removed or reduced in rank on the ground of ,conduct which has led to his conviction on a criminal charge; or...

Mr. Palit for Petitioner contends that the conviction referred to in Proviso (a) above must relate to a conviction qua holder of a civil post and conviction prior to entry into service cannot be utilised as a ground for avoiding the enquiry provided as a condition precedent to the infliction of punishment of the three categories named in Sub-article (2). Learned Additional Government Advocate, on the other hand, contends that If there be a conviction even prior to entry into Government service, the same is covered by the first Proviso and in support of his contention, reliance is placed on a Bench decision of the Assam High Court in the case of Jagadindra Nath Gupta Vs. Inspector General of Assam Rifles and Others, Jagadindra Nath Gupta Vs. Inspector General of Assam Rifles and Others, . The point raised before the Assam High Court and the answer thereto by the learned Judges appear in paragraph 4 of the judgment which runs to the following effect:

...It is urged that the Petitioner had a right to be heard under Article 311 of the Constitution and in the absence of any procedure adopted under that Article for the discharge of the Petitioner, the order discharging him was illegal and ultra vires. For the Respondent reliance is placed on proviso (a) to Clause (2) of that Article, wherein it says that Clause (2) of the Article will not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.

It is not disputed now, though there was some doubt Entertained at first, that the Petitioner holds a civil post under the Union of India which was not a military post and Article 311 will apply to his case. The contention of the Petitioner is that the above proviso will not come into play because it has no application to the facts of this case. He contends that after his employment in the office of the Inspector General of Assam Rifles, Shillong in February, 1951 there was no ground of conduct leading to his conviction on any criminal charge; and according to the learned Counsel for the Petitioner, the fact that he had been so convicted in 1941 could not be taken into account for the purpose of seeking the aid of the proviso in order to dispense with the procedure laid down in Article 311 of the Constitution.

In our opinion such a limited construction could not be put upon proviso (a) to Article 311(2) of the Constitution. The plain grammatical meaning of the provision does not admit of such a construction. The ''ground of conduct'' mentioned therein would refer to a conviction on a criminal charge both before and after the appointment. If the authorities have knowledge of the conviction earlier they might as well refuse to appoint the person concerned but if for some reason they cannot get the information earlier until after the appointment, they may take action and discharge him on that basis even without the elaborate procedure of Article 311 of the Constitution, as the proviso will be attracted to the case.

The whole object of the proviso is to avoid duplication of enquiry in the matter where already there has been a regular trial by a competent Court and the person had ample choice of defending himself. If the contention of the Petitioner is accepted, it would fellow that the person, who has actually been convicted of a serious criminal charge involving moral turpitude, if he successfully conceals the fact from the knowledge of the authorities and gets an employment, he would be entitled to claim that he cannot be discharged on that account Or that he is atleast entitled to the protection of Article 311 of the Constitution. In earlier event the assumption would be both unfair and unreasonable.

Precedents on the point seem to be meagre and counsel for Petitioner told us that apart from some discussion in a decision of the Judicial Commissioner of Tripura in the case of Union Territory, Tripura v. Gopal Chanda AIR 1961 Tri 27, he has not been able to lay hands on any other authority. The Assam decision appears to have been cited before the learned Judicial Commissioner. In the Tripura case, it was stated:

Even after studying the Assam decision, I am still of the view that Proviso (a) would relate only to conduct which led to conviction on a criminal charge after entry into service. It is not necessary to discuss the matter fully, but only to indicate it. There are indications in the Proviso itself which lead to such a conclusion. Article 31 deals with the case of a person who is a member of the Civil service and the Proviso also deals with the case of such a person.

Where the Proviso, therefore, refers to his conviction it means the conviction of such a person who is a member of the service. It would mean from this that the conviction must be after he became a member of the service and not before. I must also lay emphasis on the words ''has led'' in the Proviso. The use of the word'' has'' again would paint to the fact that the conviction must be during his employment and not before.

If we give the other interpretation, it will lead to difficulties. In the case of a conviction prior to his entry into Government service the question will naturally arise whether the fact of conviction had been brought to the notice of the appointing authority at the time of the appointment. The question in such a case would really amount to the fact of knowledge of the Government of such conviction at the time of the appointment or of suppression of the fact by the appointee and not the fact of actual conviction.

The Government may say that the fact was suppressed and the appointee may say that the appointing authority had knowledge and condoned it. Hence an opportunity will have to be given to the person concerned to show that there was no suppression. This can be done only by framing a charge against him for such suppression and by giving him an opportunity to meet it.

In other words, Article 311(2) ought to apply in such cases and the Proviso cannot apply because the question concerned will not be the conviction, but the suppression of such conviction it the time of such appointment. If the appointing authority has condoned the ground of conduct which had led to his conviction at the time of the appointment, I consider that Proviso (a) will not apply.

The decision of the Judicial Commissioner of Tripura was modified on another ground by the Supreme Court in the case of Union Territory of Tripura, Agartala Vs. Gopal Chander Dutta Choudhury, . On a reading of Article 311(2) of the Constitution, we art'' of the view that the Proviso becomes attracted only when there is a conviction of the public servant concerned after he enters into service. The reasoning given by the Assam High Court, with respect, does not appeal to us, because, the very terms of Article 311(2) and the first Proviso contain sufficient material to show the true purpose of the Constitution-makers. A conviction of the public servant has been made the basis of the law indicated in the first Proviso and, therefore, a conviction prior to appointment does not give rise to the application of the first Proviso.

Admittedly in this case no enquiry as envisaged under Article 311(2) of the Constitution had been undertaken preceding the order of dismissal. As we have found that the Proviso does not apply, the order of dismissal in the absence of an appropriate enquiry becomes vitiated. We would accordingly quash the order of dismissal as being contrary to law and declare that Petitioner continues to be a civil servant unaffected by the said order of dismissal and is entitled to all pecuniary advantages attached to his service.

We make no order as to costs.

K.B. Panda, J.

I agree.