Raj Kumar Jain vs State of M.P. and Others

Sujoy Paul, J.—Petitioner has filed W.P. No. 2160/2004 initially with the prayer to consider the letter of Chief-Engineer dated 10/03/2004 Annexure-P/13. It is further prayed for grant of salary from September, 2003. W.P. No. 1360/2005 was later-on field, which is directed against the suspension order Annexure-P/1. Admitted facts between the parties are that petitioner was placed under suspension because of pendency of a criminal case in crime No. 136/2003 for the offence under Sections 7, 13(1)D, 13(2) of P.C. Act, 1988. During pendency of this petition, the competent Court convicted the petitioner by order dated 01/12/2006. Thereafter, respondents passed the order dated 30/04/2007 Annexure-P/18, which was challenged by way of amendment in WP(s) No. 2160/2004.

Shri Katare learned counsel for the petitioner assailed the dismissal order dated 30/04/2007 on following grounds:- (1) As per G.A.D. dated 27/07/1966 Annexure-P/19, after conviction, if appeal is preferred, employee should be continued under suspension and accordingly petitioner could have been kept under suspension, but it was not permissible to dismiss him. (2) Petitioner preferred criminal appeal No. 243/2006 against the order of Court below dated 01/12/2006. This Court by order dated 15/09/2004 stayed the sentence and therefore, respondent was not justified in terminating the services of the petitioner. In support of his contention, he relied on Rachakonda Narayana Vs. Ponthala Parvathamma and Another, to submit that on filing of appeal against conviction, the conviction order is arrested. State of Maharashtra Vs. Chandrabhan Tale, is also relied upon to submit that if appeal is preferred, suspension may be continued till final outcome of the appeal. Lastly, he relied on Division Bench judgment of this Court reported in Tikaram Windwar Vs. Registrar, Co-operative Societies, M.P., Bhopal and Another, to submit that even under Rule 19 of CCA Rules, the punishment cannot be imposed without issuance of the notice.

Per Contra, Shri Newaskar submits that as per Article 311 of the Constitution and Rule 19(2) of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, no flaw can be found in the impugned orders. Petitioner''s conduct has lead to his conviction and for the said serious conduct, the employer is well within his right to dismiss the petitioner''s service. In support, enabling provision under Rule 19 of CCA Rules and Article 311 of the Constitution, no GAD circular will come in the way to exercise the statutory right.

I have heard learned counsel for the parties and perused the record.

The basic question in this case is whether employer is within its right to dismiss the petitioner from service. The contention of petitioner is based on the circular dated 27/07/1966 Annexure-P/19 and on a Division Bench judgment of this Court reported in Tikaram Windwar Vs. Registrar, Co-operative Societies, M.P., Bhopal and Another, . This is unfortunate that petitioner has relied on Tikaram Windwar Vs. Registrar, Co-operative Societies, M.P., Bhopal and Another, which has been overruled by Full Bench on the aforesaid aspect in the case of Laxmi Narayan Hayaran Vs. State of Madhya Pradesh and Another, . The Full Bench opined that after conviction in a bribery case, no further opportunity of hearing is required to be given under the M.P. CCA Rules 1966. Another Full Bench in Jamna Prasad Vs. State of M.P. and Others, opined that after conviction, the competent authority is well within its authority to terminate the services under Rule 19 of the CCA Rules. The Apex court in Union of India and others Vs. Ramesh Kum, opined as under:-

Under Rule 19 of the CCS (CCA) Rules, 1965, the Disciplinary Authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the appellate court, the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the appellate court for taking action against him on the ground of misconduct which has led to his conviction by a competent court of law. Having regard to the provisions of the rules, the order dismissing respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail.

(Emphasis Supplied)

The Rule 19 of the CCA Rules and Article 311 of the Constitution gives a right to the competent authority to dismiss the employee in the event of his conviction. The said provision do not contemplate any right of hearing. It is the conduct which leads to the conviction and the conviction which leads to dismissal. In the present case, where petitioner is convicted under PC Act, by no stretch of imagination, it can be said that punishment is disproportionate. Merely because sentence is suspended, no right is accrued in favour of the petitioner to continue in employment. The curtains are finally drawn by the Court on this issue in Ramesh Kumar (supra). Apart from this, the right of competent authority to dismiss an employee flowing from Article 311 of the Constitution read with Article 19 of the CCA Rules cannot be taken away or reduced because of executive instruction Annexure-P/19 dated 27/07/1966. Thus, there is no merit in the petition. The judgments cited by Shri Katare are not applicable in the present case. Petition is, accordingly dismissed. No costs.