Punjab State vs Ramesh Chander

Paramjit Singh Patwalia, J.—Instant regular second appeal arises out of a suit for declaration filed by the respondent-plaintiff which was decreed by the Court of first instance and appeal preferred by the appellants-defendants has also been dismissed by the learned lower appellate Court. The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are that respondent plaintiff filed a suit for declaration alleging that he was working as a Patwari. He was convicted in a criminal case and was dismissed from, service. No order was communicated to him, therefore, it was not known to the respondent-plaintiff whether the order of dismissal was retrospective or prospective. It was further alleged in the plaint that the appeal of the plaintiff against his conviction was pending in the Hon''ble Supreme Court. He had accordingly challenged the dismissal order in the civil suit.

Upon notice, appellants-defendants contested the suit alleging that the order had been passed on 02.05.1974 by the Collector dismissing the plaintiff from service on 14.03.1974 as he had been convicted u/s 5(2) of the Prevention of Corruption Act, 1947 and he has been rightly dismissed from service after following procedure under the service rules.

The Court of first instance framed the following issues:-

"1. Whether the dismissal order of plaintiff is illegal and void? OPP

Whether the suit is time barred? OPD

Relief."

The Court of first instance after perusal of the evidence recorded issue-wise findings and decreed the suit of the plaintiff vide judgment and decree dated 03.09.1985. Against that, appellants defendants preferred an appeal, which has been dismissed vide judgment and decree dated 28.05.1986 with a direction that as and when the appeal of the plaintiff before the Hon''ble Supreme Court is decided, it shall be open to the Collector to take such disciplinary action against the appellant in accordance with law.

While admitting the appeal, no substantial question of law was framed.

Having heard learned counsel for the parties and perused the record, this Court is of the view that following substantial question of law arises in the present second appeal:-

"Whether the plaintiff can be dismissed from service in view of Rule 13 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970?"

Learned State counsel contends that respondent-plaintiff was rightly dismissed from service for his misconduct as he was convicted for an offence u/s 5(2) of the Prevention of Corruption Act, 1947.

Per contra, learned counsel for the respondent contends that the respondent was dismissed from service only on the ground of his conviction in a criminal case without holding any enquiry. Conviction cannot be the basis for dismissal of an employee from service unless the competent authority has considered the conduct of the employee which led to his conviction.

I have considered the contentions of learned counsel for the parties.

Before dealing with the contentions, it would be appropriate to reproduce Article 311(2)(a) of the Constitution of India which reads as under:

"311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State:

(1) xxxxx

(2) 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 heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further 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."

Perusal of above Article reveals that the competent authority is not required to wait until decision of the appeal against conviction. Under clause (a) of the second proviso to Article 311(2) of the Constitution of India, the competent authority can pass appropriate order once a government servant is convicted of criminal charge by the trial Court. If, however, the government servant-accused is acquitted in the proceedings in revision, appeal or other proceedings, the order can always be revised and if the government servant is reinstated, he will be entitled to the benefits which would be admissible to him in accordance with the rules. The only condition under Article 311(2)(a) of the Constitution of India for inflicting any of the three major punishments mentioned in Article 311 of the Constitution of India is that the conduct should be such which had led to his conviction on a criminal charge.

Similar provision also finds mention in the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Rule 13 whereof reads as under:

"13. Special procedure in certain cases - Notwithstanding anything contained in Rule 8, 9, 10, 11 and 12-

(i) where any penalty is imposed on a Government employee on the ground of conduct which, has led to his conviction on a criminal charge; or

(ii) where the punishing authority is satisfied for recorded by it in writing that it is not reasonable practicable to hold an inquiry in the manner provided in these rules;

or

(iii) where the Government is satisfied that in the interest of the security of the Sate, it is not expedient to hold any inquiry in the manner provided in these rules, the punishing authority may consider the circumstances of the case and make such orders thereon as it deems fit;

Provided that the Commissioner shall be consulted, where such consultation is necessary, before any orders are made in any under this Rule."

In Surinder Singh Vs. The State of Punjab and another, this Court has held that since the conviction of the respondent-plaintiff in a criminal case culminated into his dismissal, so there was no legal requirement to conduct a departmental enquiry before passing the dismissal order. The Courts below have committed an error in law in decreeing the suit of the respondent-plaintiff. The findings of the Courts below are, thus, perverse and cannot be sustained. The substantial question of law is answered in affirmative. In view of above, instant second appeal is allowed. Impugned judgments and decree of both the Courts below are set aside. However, it is made clear that the respondent-plaintiff shall be deemed to be dismissed from service from the date of order of the Collector i.e. 02.05.1974 whereby his services have been terminated, not from retrospective effect i.e. 14.03.1974