CWP No.8402 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 1.6. 2011 Sushil Kumar ...Petitioner VERSUS State of Punjab and another …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.H.S.Sirohi, Advocate for the petitioner Mr.BS Chahal, DAG, Punjab Permod Kohli, J. The petitioner was serving as Clerk in the Police Department of the State of Punjab. He was involved in FIR No.57 dated 27.3.2000 registered at Police Station Banur, District Patiala under Sctions 302/304- B/305/201/120-B/148/149 IPC lodged by petitioner's in-laws. The petitioner was arrested in the said FIR and released on 16.7.2002. A criminal charge- sheet was presented against him. On conclusion of the trial, the petitioner was convicted under Section 498-A of the IPC by the learned Additional Sessions Judge, Patiala on 16.7.2002 and sentenced to undergo rigorous imprisonment for two years with fine of Rs.1000/- and in default of payment of fine, to further undergo imprisonment for two months. The petitioner preferred an appeal against his conviction before the High Court which was pending at the time of filing of this petition. On his conviction, the CWP No.8402 of 2003 2 petitioner was dismissed from service under Rule 13(i) of the Punjab Civil Services (Punishment and Appeal)Rules, 1970 Part IV, vide order dated 26.11.2002 (Annexure P-5), after issuing show cause notice and considering his reply. The order of dismissal has been challenged in the present writ petition. During the pendency of this petition, criminal appeal filed by the petitioner stands decided by the High Court, vide judgment dated 23.9.2008. The High Court, while maintaining the conviction of the petitioner ordered his release on probation with a further observation “However, it would not be treated as disability over his service career”. In view of the disposal of the criminal appeal, respondents were directed to re-consider the issue vide order dated 1.12.2009. Pursuant to the aforesaid direction, the respondents have re-considered the case of the petitioner and rejected the representation vide speaking order dated 27.2.2010 (Annexure R-1). The petitioner has challenged the order of his dismissal from service in the present petition. I have heard learned counsel for the parties. At the first instance, learned counsel for the petitioner submits that no regular departmental enquiry has been conducted while dismissing the petitioner from service. The petitioner has been dismissed from service by invoking the provisions of Rule 13(i) of the aforesaid Rules. Rules 8 deals with the procedure for imposing major penalties and holding enquiry etc. in this regard. Rule 9 deals with the action on the inquring report. Similarly, Rule 10 deals with the procedure for imposing minor penalties. Rule 11 provides for communication of orders passed by the punishing authority to the government employee. Rule 12 provides for common proceedings in case of dismissal from service of two or more government employees. Rule 13 deals with special procedure in certain cases where no departmental CWP No.8402 of 2003 3 enquiry is needed. Rule 13(i) reads as under:- “Rule 13: Special Procedure in certain cases Notwithstanding anything contained in Rules 8, 9, 10, 11 and 12 (i)where any penalty is imposed on a government employe on the ground of conduct which has led to his conviction on a criminal charge; or (ii)where the punishing authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in that manner provided in these rules; or (iii)where the Governor is satisfied that in the interest of the security of the State, 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. (iv)Provided that the commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.” In view of the conviction of the petitioner by the trial court, the petitioner has been dismissed from service by invoking the provisions of Rule 13 (i), after issuing show cause notice and considering his reply. The respondents have rightly not held regular departmental enquiry in view of Rule 13(i) and the disciplinary authority was competent to dismiss the petitioner from service on conviction, in view of the clear mandate of Rul 13(i). While dealing with a similar situation in the case of Punjab Water Supply Sewerage Board and another vs. Ram Sajivan and another, (2007) 9 Supreme Court Cases 86, the Hon'ble Supreme Court has held as under:- '9.It may be true that, in absence of any statutory rule operating in the field, the services of an employee cannot be terminated only because he was found guilty of commission of any offence irrespective of the fact whether the same involved any moral turpitude on his part, but it would be a different thing to say that an order made under the provisions of the Probation of Offenders Act, would by itself be sufficient to arrive at a conclusion that despite commission of a grave act of indiscipline, no disciplinary proceeding should be initiated.” This Court considered a similar issue in CWP No.13228 of 2009 CWP No.8402 of 2003 4 (Dilshad Ali Vs. State of Punjab and another) vide judgment dated 30.5.2011. In that case also, the conviction of the writ petitioner was under Section 406/498-A of the IPC. The said employee was also released on probation. This Court relied upon the judgment of the Hon'ble Supreme Court reported as Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank, (2010) 8, Supreme Court Cases, 573. “18. In view of the above, the law on the issue can be summarised to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word “disqualification” contained in Section 12 of the 1958 Act refers to a disqualification provided in other statues, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act.” A number of other judgments have been considered and the writ petition has been dismissed with the following observations:- “In view of the above, release of the petitioner on probation cannot come to his rescue nor does it provide a ground for setting aside his conviction which otherwise stands even on release on probation.... Applying the underlying objective of the expression “moral turpitude” it can be safely inferred that where the act of an employee is deceitful and does not reflect modesty, honesty or good morals, it has to be construed as an act of “moral turpitude”. Persons convicted for misappropriation of even his wife's property and asking for dowry by using coercive methods, definitely indulges in an act of dishonesty and is contrary to all canons of modesty and good morals. It is the greed of the husband and greed can never be an honest approach and definitely leads to something which is against good morals. In view of the above instances, I am of the CWP No.8402 of 2003 5 considered opinion that it was not necessary for the authorities to hold any enquiry against the petitioner after his conviction before passing the order of dismissal. There is no merit in the present petition and the same is hereby dismissed with no order as to costs.” Again in the case of Sushil Kumar Singhal vs. The Regional Manager, Punjab National Bank (Civil Appeal No.6423 of 2010) decided on 10.8.2010 wherein following observations have been made:- “27.In view of the above, we reach the conclusion that once a criminal court grants a delinquent employee the benefit of Act, 1958, its order does not have any bearing so far as the service of such employee is concerned. The word “disqualification” in Section 12 of the Act, 1958 provides that such a person shall not stand disqualified for the purposes of other Acts like the Representation of the People Act, 1950 etc. The conviction in a criminal case is one part of the case and release on probation is another. Therefore, grant of benefit of the provisions of Act, 1958, only enables the delinquent not to undergo the sentence on showing his good conduct during the probation. In case, after being released, the delinquent commits another offence, benefit of Act, 1958 gets terminated and delinquent can be made liable to undergo the sentence. In case of an employee who stands convicted for an offence involving moral turpitude, it is his misconduct that leads to his dismissal. ..... 29.In view of the above, we find no force in the appeal and it is accordingly dismissed. No order as to costs.” In view of the above, I find no merit in this petition which is accordingly dismissed. (PERMOD KOHLI) JUDGE Pronounced on 1.6. 2011 MFK CWP No.10585 of 2010 6