Surinder Singh vs The State of Punjab and another

Mehinder Singh Sullar, J.—The matrix of the facts, which needs a necessary mention for a limited purpose of deciding the core controversy

involved in the instant writ petition and emanating from the record, is that the petitioner was working as a Patwari in Halqa Bahirampur. A criminal

case was registered against him, on accusation of having committed the offence punishable u/s 5(2) of The Prevention of Corruption Act, 1988

(hereinafter to be referred as ""the P.C. Act"") and Section 161 IPC, vide FIR No.159 dated 09.09.1987, by the police of Police Station Ropar

(Rupnagar).

Having completed all the codal formalities, the petitioner was convicted and sentenced undergo rigorous imprisonment for a period of two years

and to pay a fine of Rs.5,000/-, for the commission of offence punishable u/s 5(2) of the P.C. Act and to further undergo rigorous imprisonment

for a period of two years and to pay a fine of Rs.5,000/- u/s 161 IPC, by virtue of judgment of conviction and order of sentence dated

03.09.1991 by the Special Judge, Rupnagar.

to the wake of conviction/sentence of the petitioner under the P.C. Act and Section 161 IPC, the competent authority dismissed the petitioner

from service, by way of impugned dismissal order dated 23.09.1991(Annexure P-l).

Sequelly, the petitioner did not feel satisfied and preferred the present writ petition, challenging the impugned dismissal order(Annexure P-l),

invoking the provisions of Articles 226/227 of the Constitution of India, inter alia, on the ground that mere conviction/sentence by the trial Court is

not sufficient for his dismissal, till the conviction was finally upheld by the Hon''ble Supreme Court, that too without holding any domestic enquiry in

this regard. The impugned dismissal order(Annexure P-l) was stated to be illegal and violative of Article 311(2) of the Constitution of India and

Rule 13(i) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for brevity ""the Service Rules""). On the basis of aforesaid

allegations, the petitioner sought quashment of the impugned dismissal order (Annexure P-l), in the manner depicted here-in-above.

Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts

over the entire matter, to my mind, there is no merit in the instant writ petition.

Ex facie, the argument of the learned counsel that mere conviction/sentence of the petitioner by the trial Court, is not sufficient to dismiss him

from service, without holding any proper enquiry, is neither tenable nor the observations of the Hon''ble Apex Court in Civil Appeal No.5226 of

2004 titled as Prithipal Singh v. State of Punjab and others, decided on 19.10.2006 and of this Court in case Hari Ram v. Dakshin Haryana Bijli

Vitaran Nigam Ltd. and another, 2006(2) R.S.J. 327, are at all applicable to the facts of the present case.

As is clear that in Prithipal Singh''s case (supra), the order of dismissal passed by the SSP in a domestic enquiry was held illegal, void and not

sustainable and the appellant therein was reinstated in service. Thereafter, the departmental proceedings were held and the charges, having not

been proved, were dropped. On the peculiar facts and circumstances of that case, it was observed that once in the disciplinary proceedings, the

appellant was exonerated of the charges framed against him, the question of taking recourse to Clause (b) of the 2nd proviso appended to Clause

(2) of Article 311 of the Constitution of India did not and could not arise. It was further held as under:-

Holding of a departmental proceeding is the rule. The 2nd Proviso appended to Article 311(2) of the Constitution of India provides for an

exception. It is a trite law that existence of such an exceptional situation must be shown to exist on the basis of relevant materials. In this case, even

such a question did not arise as a departmental proceeding had been held and the appellant was not found guilty therein. Once he was exonerated

of the charges, the question of issuing an order of dismissal against him and that too, upon dispensation of a formal inquiry, did not arise. The

judgment of the High Court as also of the 1st Appellate Court are set aside and that of the trial Court is restored.

Likewise, in Hari Ram''s case (supra), the petitioner was convicted for the offences under Sections 148 and 307 IPC read with Section 149

IPC and it was observed that the competent authority did not pay any attention to the conduct, which led to the conviction of the petitioner and his

conduct was not assessed to reach a conclusion as to whether it would be undesirable to keep him in service or not.

Possibly no one can dispute with regard to the aforesaid observations, but to me, the same would not Gome to the rescue of the petitioner in the

present controversy.

Article 311(2) of the Constitution of India postulates 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 posits 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.

Similarly, Rule 13 of the Service Rules is an exception to the general rules of enquiry and provides a special procedure in certain cases, which

escalates that notwithstanding anything contained in Rules 8 to 12, shall apply where any penalty is imposed on a Government employee on the

ground of conduct, which has led to his conviction on a criminal charge.

A co-joint reading of these provisions would reveal that the competent authority has the absolute power to dismiss an employee from service

on the basis of his conviction.

In somewhat similar circumstances, the Hon''ble Supreme Court has considered the matter in case titled as Union of India v. Tulsi Ram Patel,

1985(2) S.L.R. 576. Having noticed the relevant provisions, it was ruled (in Para 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 there 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.

What is not disputed in the instant case is that the petitioner has already been held guilty, convicted and sentenced in a very heinous offence in a

corruption case and u/s 161 IPC, in the manner described here-in-above. Since, the conviction of the petitioner in a criminal case culminated into

his dismissal, so, there was no legal requirement to conduct a departmental enquiry before passing the dismissal order by the respondents, as urged

on his behalf.

Sequelly, the next celebrated argument of the learned counsel that the conduct of the petitioner was not such warranting the punishment of

dismissal, is not only devoid of merit but misconceived as well. The person, who is an accused of accepting illegal gratification, can certainly not

plead that the offence for which he is convicted, is not such to dismiss him from service. When the Court convicts an employee in a corruption case

and u/s 161 IPC, it pre-supposes that he is guilty of grave misconduct and his retention in service would not be in the larger public interest. The

order of dismissal was passed against the petitioner after due consideration of his conduct, which ultimately led to his conviction. Corruption is such

an offence which deserves no leniency or sympathy. Such offence brings disgrace and shame not only to the concerned employee but to the

society at large as well. In such a case of conviction of corruption etc., it would not be possible to adjudge the conduct of the petitioner with any

leniency to consider the award of punishment other than the dismissal. The offence, for which the petitioner was convicted for corruption and his

conduct in such like cases, which leads to conviction is such that the dismissal would only be appropriate way of dealing with such corrupt

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 Civil Writ Petition

No.6454 of 2009, decided on 09.11.2009. Having considered the earlier judgments of this Court in Civil Writ Petition No.2124 of 2009 Parvesh

Vs. State of Haryana and Others, decided on 20.08.2009, in L.P.A. No. 204 of 2007 Vashampine alias Kunni v. State of Haryana and others,

decided on 04.10.2008 and in Civil Writ Petition No. 5946 of 2009 Bharat v. State of Haryana and others, decided on 08.10.2009, it was

observed 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. 1,500/- 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"".

Therefore, to my mind, the competent authority has rightly dismissed the petitioner from service on the ground of conviction in a corruption

case and u/s 161 IPC, invoking the provisions of Article 311(2) of the Constitution of India and Rule 13 of the Service Rules and the contrary

arguments of the learned counsel for the petitioner ""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. In this manner, as, no interference is warranted,

therefore, the impugned order (Annexure P-l) is 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 parties.

In the light of aforesaid reasons, as there is no merit, therefore, the instant writ petition is hereby dismissed as such.