M.L. Sachdeva vs Dakshin Haryana Bijli Vitran Nigam Ltd and Another

Mehinder Singh Sullar, J.—The epitome of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that M.L. Sachdeva appellant-plaintiff (for brevity "the plaintiff'') was posted as Senior Accounts Officer in the office of Chief Auditor, Dakshin Haryana Bijli Vitran Nigam Limited (for short "defendant No. 1-Nigam"). Two criminal cases, bearing FIR Nos. 181 and 182 dated 21.4.1990 were registered against him alongwith his other co-accused, on accusation of having committed the offences punishable under sections 409, 406, 420, 467, 468, 471, 120-B and 210 IPC etc. by the police of Police Station Sadar Panipat. He was convicted and sentenced by the Court of ACJM, by virtue of judgment of conviction and order of sentence dated 14.2.2004. The criminal appeals filed by him were stated to be pending.

The case set up by the plaintiff, in brief in so far as relevant, was that the Managing Director of defendant No. 1-Nigam has passed the order dated 21.5.2004 (Ex. P1), whereby, he has been dismissed from service. The plaintiff has challenged the dismissal order, being null, void, against the mandatory provisions of The Haryana State Electricity Board Employees (Punishment and Appeal) Regulations, 1990 (hereinafter to be referred as "the relevant Rules") and principles of natural justice. It was claimed that defendant No. 1-Nigam also did not pay the salary to the plaintiff after 13.2.2004 despite repeated requests. He asked the defendant No. 1-Nigam to admit his claim and to release his salary, but in vain, which necessitated him to file the suit. On the basis of aforesaid allegations, the plaintiff filed the suit for a decree of declaration, challenging the impugned indicated dismissal order (Ex. P1) passed by defendant No. 1-Nigam, with a consequential relief of permanent injunction, restraining the defendants from implementing the order (Ex. P1) and from recovering any amount from him in the manner, described hereinbefore.

The defendants contested the suit and filed their written statement, inter-alia pleading certain preliminary objections-of, maintainability of the suit, suppression of material facts, estoppel, cause of action and locus standi of the plaintiff. On merits, it was claimed that the services of the plaintiff were rightly terminated, in view of his conviction of criminal offences involving his moral turpitude. It was explained that on 14.6.2004, plaintiff un-authorizedly entered in the office of the Nigam during lunch hours, picked up attendance register and marked his presence with effect from 24.5.2004 to 14.6.2004. This matter was also reported to the police, where another criminal case, vide FIR No. 19 dated 24.6.2004 was registered against the plaintiff by the police of Police Station Civil Lines, Hisar. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:-

Whether the order No. 195/SE/Admn. dated 21.5.04 passed by the Managing Director of defendant No. 1 is illegal, null and void and is liable to be set aside ?OPP

Whether the memo No. CAO/P&A/117, dated 9.6.2004 issued by the defendant No. 2 vide which he has asked to take action against the plaintiff for effecting recovery of an amount of Rs. 92548/- is illegal, null and Void and is liable to be set aside ?OPP

Whether the plaintiff is entitled to decree of permanent injunction ?OPD

Whether the suit is not maintainable ?OPD

Whether the plaintiff has no cause of action to file the present suit ?OPD

Relief.

In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence.

The trial Court dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 25.4.2006.

Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was dismissed with costs, as well, by the 1st appellate Court, by way of impugned judgment and decree dated 12.3.2010.

The appellant-plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and preferred the instant appeal. That is how I am seized of the matter.

After hearing the learned counsel for the appellant-plaintiff, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the present appeal in this context.

Ex facie, the argument of the learned counsel that since the termination order (Ex. P1) was passed against the plaintiff, without issuing any show cause notice to him and in violation of principles of natural justice, so, the Courts below committed a legal mistake in dismissing his suit, is neither tenable nor the observations of this Court in cases Om Prakash Vs. The Director Postal Services (Posts and Telegraphs Department), Ambala and Others, and Hari Ram v. Dakshin Haryana Bijli Vitran Nigam Ltd. and Another 2006 (2) RSJ 327 are at all applicable to the facts of this case.

As is clear in Om Parkash''s case (supra), the employee was dismissed from service consequent upon his conviction under sections 420, 465 and 471 read with section 511 IPC (attempt to commit offence) in connection with submission of false medical reimbursement claimed by him; whereas in Hari Rant''s case (supra), the petitioner was convicted only for the offence punishable under sections 148 and 307 read with section 149 IPC. On the peculiar facts and in the special circumstances of those cases, it was observed that "an order of dismissal or removal or for compulsory retirement can be passed under the provisions of the relevant Regulations, without conforming to the procedure prescribed for holding of domestic enquiry only if the competent authority finds that the relevant misconduct of the concerned Government servant renders his further retention in public service undesirable. The competent authority is required to pay attention to the conduct, which led to the conviction of the petitioner and to reach a conclusion as to whether it would be undesirable to keep him in service or not before passing the termination order."

Hardly, there is any dispute with regard to the legal proposition, but to me, the same would not come to the rescue of the plaintiff in the instant case.

Article 311(2) of the Constitution of India posits that no person/employee 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 heard in respect of those charges. Proviso (a) to this Article further envisages that this Clause shall 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.

Not only that, as per notification dated 13.9.1990 (Ex. D3), defendant No. 1-Nigam had made the regulation governing the conditions of service of its employees. Regulation 7 provides the procedure for inflicting major penalties. The proviso 2 of regulation 7(2)(a) escalates that a person, who has been convicted on a criminal charge, is liable to be dismissed from the service without following the procedure described in sub regulation 7. It is not a matter of dispute that the offences, for which, the plaintiff was convicted, amount to involving moral turpitude as per instructions (Ex. D4).

A conjoint reading of these provisions would reveal that defendant No. 1-Nigam has the absolute power to dismiss an employee from service on the basis of his conviction.

In some what similar circumstances, the Hon''ble Apex Court in case titled as Union of India v. Tulsi Ram Patel 3 1985 (2) SLR 576, has observed (paras 127 and 153) as under:-

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 penalty and, if so,. What that penalty should be. For the purpose it will have to peruse the judgment of the Criminal Court and consider all the facts and circumstances of the case and the various factors set out in Challapan''s case. 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.

The second ground upon which the High Court rested its decision is squarely unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the respondent''s conviction u/s 332 of the Indian Penal Code and the nature of the offence committed which led the disciplinary authority to the conclusion that the further retention of the respondent in the public service was undesirable. The mention of Section 332 of the Indian Penal Code in the said order itself shows that respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public servant or in consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The respondent had gone to the office of his superior officer and had hit him on the head with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the offence committed would have been the more serious one u/s 333. The respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his retention in public service was undesirable. In fact, the conduct of the respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on probation. We accordingly hold that clause(i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the respondent.

As is evident from the record that the appellant was convicted and sentenced in a very heinous offence punishable under sections 409, 406, 420, 467, 468, 471, 120-B and 210 IPC in two criminal cases, which involved moral turpitude. Therefore, since the conviction of the appellant in two criminal cases, has culminated into his dismissal, so, there was no legal requirement to conduct a departmental enquiry before passing the dismissal order by defendant No. 1-Nigam, as urged on his behalf.

Likewise, the next cosmetic argument of the learned counsel that the conduct of the appellant was not such warranting the punishment of dismissal, is not only devoid of merit but misplaced as well. The person, who is an accused and was convicted for misappropriation, criminal breach of trust, cheating, forgery, criminal conspiracy and fraud, can certainly not claim that the offence for which he was convicted, is not such to dismiss him from service. When the Court convicts an employee in a heinous offence, it pre-supposes that he is guilty of grave misconduct and his retention in service would not be in the larger public interest.

Again, it is not a matter of dispute that mis-appropriation, criminal breach of trust, cheating, forgery, criminal conspiracy and fraud as also corruption bring disgrace and shame not only to the concerned employee but to the society at large as well and convict in such offences does not deserve any leniency or sympathy in this regard. In such a case of conviction, it would not be possible to adjudge the conduct of the appellant with any leniency to consider the award of punishment other/less than the dismissal. To my mind, in case of conviction of a person in such heinous offence, the dismissal would only be appropriate way of dealing with such unscrupulous employees. This matter is not res integra and is well settled.

An identical question came to be decided by this Court in case titled as Ashok Kumar v. State of Haryana and Others in 4 Civil Writ Petition No. 6454 of 2009, decided on 09.11.2009. Having considered the earlier judgments of this Court in Parvesh Vs. State of Haryana and Others, , in L.P.A. No. 204 of 2007 (Vashampine alias Kunni v. State of Haryana and Others),6 decided on 04.10.2008 and in Civil Writ Petition No. 5946 of 2009 (Bharat v. State of Haryana and Others),7 decided on 08.10.2009, it was ruled as under:-

A person, who is accused of accepting illegal gratification, can certainly not plead that the offence of which he is convicted would not be involving moral turpitude. The perusal of the impugned order would otherwise show that the gravity of the misconduct and the impact of the same on the administration was duly considered before passing the order of dismissal. Having made note of the allegations against the petitioner in detail for accepting bribe and the background of grant of sanction etc. and the factum of his conviction, the punishing authority observed as under:-

On the charge of having taken bribe of Rs. 1500/- against Shri Bharat Patwari in lieu of an official work, having been proved, the Hon''ble Court has punished him and has also imposed fine upon him. Therefore, by keeping this employee in service, there shall be possibility of this employee to demand bribe for official works and moreover, an adverse influence shall also be caused on the other employees that an employee who has been punished for accepting bribe has been kept in government service. By this, there will be encouragement to corruption in official works. It has become a grave problem of employees taking bribe in government offices for doing official work and for stopping of which strict measures are required. In this manner, Shri Bharat Patwari is not liable to be kept in service for having been punished under the Prevention of Corruption Act. The Government vide its letter No. ARS-4-2008/12179, dated 26.09.08 has also issued instructions as under:-

When the Court convicts an employee and if the sentence of the convicted employee is suspended in appeal, then there is no Ban in the Dismissal of the convicted employee and the employee cannot be reinstated on that basis.

After making reference to the cases of The Divisional Personnel Officer, Southern Railway and Another Vs. T.R. Chellappan and Others, , Union of India (UOI) Vs. V.K. Bhaskar, and Om Prakash Vs. The Director Postal Services (Posts and Telegraphs Department), Ambala and Others, , it is further held that in a case of conviction for bribe, it would not be possible to view the allegations with any leniency to consider the award of punishment other than the dismissal. The offence and the conduct in such like cases is such that the dismissal would be appropriate way of dealing with the employee. As already noticed, this is not such a case where it can be termed that the dismissal of the petitioners from the service was ordered merely on the basis of conviction. The final impugned order passed by the Collector very well reflects the application of mind to the facts and background of the case and the conduct of the petitioners which has led to their respective conviction and thereafter the order of dismissal was passed. I, therefore, find no merit in this limb of submission made by counsel for the petitioners and would accordingly reject the same.

The same view was again reiterated by this Court in case titled as Surinder Singh Vs. The State of Punjab and another, . In this manner, to me, defendant No. 1-Nigam has rightly dismissed the appellant from service on the ground of conviction in the heinous offences as discussed hereinabove, invoking the provisions of Article 311(2) of the Constitution of India and Regulation 7 of the relevant rules and the contrary arguments of the learned counsel for the appellant "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances, as the law laid down in Ashok Kumar''s case (supra), is the complete answer to the problem in hand. Hence, Since, no interference is warranted, so, the impugned judgments and decrees of the courts below are maintained, in the obtaining circumstances of the case.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant.

In the light of aforesaid reasons, as there is no merit, therefore, the instant regular second appeal is hereby dismissed as such.