CIVIL WRIT PETITION NO.19987 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 15,2010 Des Raj .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. K. Sharma, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. A person convicted of a criminal offence can certainly be dismissed from service on account of such conviction. The issue, however, in the present writ petition is slightly different and it relates to the power of the authorities to dismiss a person on account of his conviction for a criminal charge, which is stayed by a court of competent jurisdiction after the order of dismissal has been passed. Is it that the conviction for each and every offence should lead to dismissal or that nature of offence alleged is to be considered while passing any such order is another question arising in this CIVIL WRIT PETITION NO.19987 OF 2009 :{ 2 }: case. The petitioner was serving in the Health Department as a Ward servant at Civil Hospital, Ambala. He was sentenced to undergo two years RI for his conviction for an offence under Section 323 IPC and similar sentence for conviction under Section 452 IPC coupled with fine of Rs.500/-. In default of payment of fine, the petitioner was required to undergo five months imprisonment in addition. The petitioner challenged his conviction and sentence by filing a criminal appeal before this court on 20.4.2006. This Hon'ble Court was pleased to suspend the sentence on 28.3.2006. Upon release on bail, the petitioner was taken back in service and continued to perform his duties for almost three years. When the petitioner became due for retirement on 27.2.2009, he was surprised to receive an order dismissing him from service just one day prior to his date of retirement on the ground that petitioner has been sentence and convicted in a criminal case. The petitioner thereafter filed a criminal misc.petition before this court in the criminal appeal filed by him challenging his conviction and sentence. This court stayed the conviction of the petitioner on 16.7.2009. The petitioner accordingly filed application on 23.7.2009 for recall of the impugned order of his dismissal passed on 27.2.2009 and thereafter filed this writ petition when no action was taken on his representation. Respondents have filed reply and would justify the order of dismissal due to conviction of the petitioner for offences under Sections 323 and 452 IPC. As per the respondents, the offence under Section 452 IPC, for which the petitioner has been convicted, is a serious offence and is an offence involving moral turpitude and CIVIL WRIT PETITION NO.19987 OF 2009 :{ 3 }: so such a person could not be kept in service. The respondents, thus, would justify the impugned order to be perfectly legal, valid and as per the law. To explain the delay in passing the order during which period the petitioner was allowed to perform duties, it is stated that the order was passed after seeking legal opinion and consequently there was delay in passing the impugned order for which the petitioner cannot take any advantage. Considering that the respondents apparently did not apply their mind to the complete factual position, the State counsel was required to have instructions if the order of dismissal a day prior to the date of retirement could be termed as fair when his conviction was stayed though subsequently. As per the State counsel, the action of the State was considered justified. Article 311 (2) of the Constitution of India declares that no person, who is a member of the civil service of the Union or All-India service or a civil service of a State or holds a post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and is given a reasonable opportunity of being heard in respect of those charges. The second proviso to the said Article, however, carves out three exceptions. The second proviso with which we are concerned in the present case provides that 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, then the requirement of holding enquiry to order dismissal etc. shall not apply. This clause, as noticed above, talks of conduct which has led to conviction on a criminal charge and does not speak of sentence or CIVIL WRIT PETITION NO.19987 OF 2009 :{ 4 }: punishment awarded. Suspension of sentence, therefore, does not mean that the conviction has ceased to be operative. Section 389 Cr.P.C. empowers the appellate court to suspend the conviction and, therefore, the question would arise whether the order of dismissal could still be passed if the conviction is stayed. Though this issue does not directly arise in this case because the conviction of the petitioner had not been stayed when his order of dismissal was made. Subsequently, however, his conviction was stayed and thereafter the petitioner had filed representation to re-call the order of his dismissal. Mr.Nehra would refer to the observations made by the Hon'ble Supreme Court in Deputy Director of Collegiate Edu. (Admn.), Madras Vs. S. Nagoor Meera, AIR 1995 (SC) 1364 to urge that even if conviction had been stayed, the respondents could competently pass the order of dismissal. In this case, the Hon'ble Supreme Court has clearly observed that what is relevant for clause (a) of the second provision to Article 311(2) is the “conduct which has led to his conviction on a criminal charge” and that there can be no question of suspending the conduct. The court accordingly opined that taking proceedings for and passing the orders of dismissal, removal or reduction in rank of a government servant, who has been convicted by a criminal court or order is suspended by the appellate court or on the ground that he is released on bail would be justified. The court further observed that there was no basis or justification for the said view that until appeal against the conviction is disposed of, the action under Article 311(2) is not permissible. The relevant observations of the Supreme Court in this case are as under:- CIVIL WRIT PETITION NO.19987 OF 2009 :{ 5 }: “We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant, who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.” This ratio of law laid down in Deputy Director of Collegiate Edu.(Admn.) Madras's case (supra) was followed and approved by the Hon'ble Supreme Court in Union of India Vs. V.K.Bhaskar, JT 1998 (9) SC 301=1997 (11) SCC 383. Division Bench of this Court in Tehal Singh Vs. D.H.B.V.N.L. & others, 2007(5) S.L.R. 294 also took a view that when a person is convicted in a criminal case under various charges and is sentenced to undergo rigorous imprisonment, then the order of termination is absolutely legal and in case criminal appeal filed by the petitioner is allowed, he would be entitled to all the consequential benefits. Delhi High Court in R.P.Sharma Vs. Municipal Corporation of Delhi, 2000(4) S.C.T. 438 has taken a similar view by observing that departmental/disciplinary action can be taken and the services of the concerned employee can be terminated by way of dismissal on the basis of a conviction order passed by a criminal court even if such conviction order is suspended in appeal filed by the convicted employee. Single Bench of this Court in Dharam Pal Vs. R.S.Malik, 2002(4) S.C.T. 313 has held that termination of service during pendency of appeal would not amount to interference CIVIL WRIT PETITION NO.19987 OF 2009 :{ 6 }: in administration of justice and the disciplinary authority is held competent to pass necessary order in disciplinary proceedings as it may deem fit and proper. It is, thus, clear that even if the conviction is stayed or sentence is suspended, the disciplinary authority is well within its jurisdiction to pass the order of dismissal or other punishment. The counsel for the petitioner would submit that order of dismissal a day prior to retirement of the petitioner on account of conviction for an offence under Sections 323/452 IPC would be unfair. The plea appears to be that the respondents could have imposed some lesser punishment, like reduction in rank or removal instead of dismissal and even otherwise the order of dismissal could not have been made as the offences for which the petitioner was convicted really would not be offences involving moral turpitude. In this connection, reference is made to the instructions issued by the State giving list of offences involving moral turpitude to urge that respondents have not considered this aspect to see if the petitioner could be dismissed in view of these instructions or any lesser punishment would have met the ends of justice in this case. In Shankardass Vs. Union of India, 1985 (2) S.C.R. 358, the Hon'ble Supreme Court was to observe that power under Clause (a) of second proviso to Article 311(2) like every other power has to be exercised fairly and justly and reasonably. This was a case where Government servant was convicted for offence of parking his scooter in a no parking area. The Hon'ble Court observed that conviction for such an offence should not lead to dismissal from service and surely the Constitution does not contemplate so. It is also CIVIL WRIT PETITION NO.19987 OF 2009 :{ 7 }: observed that such a person would not be entitled to be heard on the question of penalty but the right to impose penalty carries with it the duty to act justly. The relevant observations in this regard are as under:- “Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the power to dismiss a person from service “on the ground of conduct which has led to his conviction on a criminal charge.” But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from services. He may perhaps not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly.” In Rameshwar Dutt Sharma Vs. Lt. Governor, Delhi and another, AIR 1992(1) CAT 460, the order of dismissal which was based on conviction was held not sustainable on the ground that the order was non-speaking passed in a mechanical way. In this case, the liberty was granted to the petitioner to make detailed representation bringing out the extenuating circumstances if any and his grievance about the quantum of punishment and on making such CIVIL WRIT PETITION NO.19987 OF 2009 :{ 8 }: a representation, the respondents were directed to consider the same and pass a speaking order. Full Bench of this Court in Om Parkash Vs. The Director Postal Services (Posts and Telegraphs Deptt.), Punjab Circle, Ambala and others, AIR 1973 Punjab and Haryana 1 has held that departmental punishment of a Government servant is not a necessary and automatic consequence of conviction on a criminal charge and that the competent authority has to consider all the circumstances of the case and then make such an order in relation to question of imposing of penalty on the Government servant for his original conduct, which may have led to his conviction. Similar ratio would emerge from the decision in the cases of The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan, (1976) 3 SCC 190, Union of India Vs. V.K. Bhaskar, (1997) 11 SCC 383, Rajinder Singh Vs. Board of School Education Haryana and another, 1996 (4) RSJ 417 and Kulwant Singh Vs. The Deputy District Primary Education Officer, Gurdaspur, 1997(1) SCT 282. There is no indication available from the record that the authorities had considered if this was a case where dismissal was warranted or any other punishment, like removal, reduction etc. would also meet the ends of justice. Even otherwise, the authorities were also bound to consider whether the petitioner was required to be dismissed a day prior to his retirement and could have been shown some consideration by ordering some lesser punishment considering the long length of his service for which he had served the respondent-department. The respondents were also under obligation CIVIL WRIT PETITION NO.19987 OF 2009 :{ 9 }: to consider if the conviction for an offence under Section 323/452 IPC was such that petitioner deserved to be dismissed in the light of instructions issued by the Government giving out the list of the offences involving moral turpitude. This issue is considered in detail in Civil Writ Petition No.2124 of 2009, decided on 20.8.2009. Certain tests relevant to determine whether certain offences could be termed involving moral turpitude or not, are noticed in this case. It is observed that decision in each case will depend upon the circumstances of the case and the competent authority has to exercise its discretion while arriving at the decision in accordance with the principles, as are noticed in this case. It is held in this case that courts have assigned the meaning to the term as is understood and explained. Moral turpitude was referred to as something which would mean, as noticed by the Supreme Court, an act which is vile, deprave or having any connection showing depravity. It means something, which is contrary to justice, honesty, modesty or good morals. As held in Baleshwar Singh Vs. District Magistrate and Collector, Banaras, AIR 1959 Allahabad 71 that it is to be seen in each case if the conduct alleged was inherently base, vile, depraved or showing such tendency. This has to be seen and appreciated in the context and circumstances of each case to find out if the conduct was base, vile or deprave. It may not be fair to term the offence of trespass under Section 452 IPC as such which would be involving moral turpitude. Even as per the Government instructions issued, the offence under Section 323 IPC has not been listed as one of those offences which would be involving moral turpitude. This issue has, thus, to be considered and CIVIL WRIT PETITION NO.19987 OF 2009 :{ 10 }: decided in the light of this legal position and facts in this case would have to be considered in this regard. I am, thus, of the considered opinion that the respondents have not considered the case of the petitioner in a just, fair and reasonable manner. The case, therefore, is made out for directing the respondents to reconsider the entire issue in the light of the observations made above and pass a fresh order considering all these aspects and see if the petitioner was required to be dismissed from service on account of his conviction for offences under Sections 323/452 IPC or any lesser punishment would have sufficed in the facts and circumstances of this case. The writ petition is accordingly disposed of in the above terms. There shall be no order as to costs. November 15, 2010 ( RANJIT SINGH ) ramesh JUDGE