IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.758 of 2008 ***** UMESH CHAUBEY SON OF LATE BINDESHWAR CHAUBEY, RESIDENT OF VILLAGE-KARUNA, P.S.-SURSAND, DISTRICT- SITAMARHI. ------APPELLANT Versus 1. CHAIRMAN, L.I.C. OF INDIA, NARIMAN POINT, MUMBAI 2. MANAGING DIRECTOR, L.I.C. OF INDIA, NARIMAN POINT, MUMBAI 3. ZONAL MANAGER, L.I.C. OF INDIA, CHITTRANJAN AVENUE, KOLKATTA -2 4. SENIOR DIVISIONAL MANAGER, JEEVAN PRAKASH BUILDING, UMA SHANKAR PRASAD, MARG, MUZAFFARPUR 5. BRANCH MANAGER, L.I.C. OF INDIA, SONI COMPLEX, HAJIPUR ---- RESPONDENTS ----------- For the Appellant : Mr. Balbhadra Singh, Advocate Mr. Ashok Kumar Singh, Advocate For the Respondents : Mr. Rajeev Ranjan Prasad, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 15th December, 2008. That the service of the appellant was governed by the Life Insurance Corporation of India (Staff) Regulations, 1960 is not in dispute. That the appellant has been convicted for an offence punishable under Section 7 and 13(2) of Prevention of Corruption Act, 1988 and has been awarded imprisonment for two years is also not in dispute. Regulation 39 provides that an employee, who commits - 2 - a breach of regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct is liable to the imposition of penalties set out therein. It reads thus:- “39. (i) without prejudice to the provisions of other regulations, [any one or more of] the following penalties for good and sufficient reasons, and as hereinafter provided, be imposed [by the disciplinary authority specified in Schedule 1] on an employee who commits a breach of regulations of the Corporation, or who displays negligence, inefficiency or indolence or who knowingly does anything detrimental to the interest of the Corporation, or conflicting with the instructions or who commits a breach of discipline, or is guilty of any other act prejudicial to good conduct- . (a) censure; (b) withholding of one or more increments either permanently or for a specified period; (c) recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Corporation by negligence or breach of orders; (d) reduction to a lower service, or post, or to a lower time-scale, or to a lower stage in a time-scale; (e) compulsory retirement; (f) removal from service which shall not be a disqualification for future employment; (g) dismissal. (2) No order imposing on an employee any of the penalties specified in clause (b) to (g) of sub-regulation (1) supra, shall be passed by the disciplinary authority specified in Schedule 1 without the charge or charges being communicated to him in writing and without his - 3 - having been given a reasonable opportunity of defending himself against such charge or charges and of showing cause against the action proposed to be taken against him. (3) The disciplinary authority empowered to impose any of the penalties, (b), (c),(d),(e),(f) or (g) may itself enquire into such of the charges as are not admitted or if it considers it necessary so to do, appoint a board of enquiry or an enquiry officer for the purpose. (4) Notwithstanding anything contained in sub- regulations (1) and (2) above--. (i) where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge; or (ii) where the authority concerned is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in this regulation; or (iii) where an employee has abandoned his post, the disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. Explanations 1: For the purpose of this regulation, an employee shall be deemed to have abandoned his post if he absents himself from duty without leave or overstays his leave for a continuous period of ninety days without any intimation therefor in writing. 2: All communications under this regulation and copies of orders passed thereunder may be delivered personally to the employee if he is attending office; otherwise they shall be sent by registered post to the address noted in the service record. Where such communications or copies of orders cannot be served on him personally or by registered post, copies thereof shall be affixed on the notice board of the office in which the employee is employed, and on such affixing such communications and orders shall be deemed to have been properly served on him.” 2. It would be seen that the Regulation 39(4) starts with a non-obstante provision, which inter alia, provides for - 4 - imposition of penalty on an employee on the ground of conduct, which has led to conviction for criminal charges. 3. Consequently, upon the appellant having been convicted by the criminal Court under Section 7and 13(2)) of the Prevention of Corruption Act vide order dated 31st January, 2004 and sentenced for imprisonment for two years, a notice was given to him calling upon him as to why he be not removed from service. Inter alia, the notice dated 13th March, 2004 given to the petitioner reads thus: - “THAT by your aforesaid act which has led to a conviction on criminal charge, you have acted in a manner detrimental to the interest of the Corporation and tarnished the image of the corporation and thereby have violated the Provision of Regulation 21, 24 of the LIC of India (Staff) Regulations, 1960. I, therefore, as a Disciplinary Authority, by virtue of powers conferred on me under Schedule I, read with Regulation 39 of (Staff) Regulations, 1960, like to invoke the provision of Regulation 39(4)(i) of the LIC of India (Staff) Regulations, 1960 and propose to impose upon you the penalty of removal from service in terms of Regulation 39(1)(f) of the aforesaid (Staff) Regulations. HOWEVER, before I proceed further in the matter, you are hereby called upon to state in writing within a period of 10 days from the date of receipt of this Charge Sheet-cum-Show Cause Notice as to why the aforesaid penalty of removal from service be not imposed on you. In case no reply is received from you within the period stipulated hereinabove or if the reply is found to be unsatisfactory, further proceedings shall ensue without any reference to you.” 4. The appellant-respondent responded to this show-cause notice. Upon consideration thereof, the disciplinary authority passed the order of removal on 19th April, 2004. The said order has been affirmed in departmental appeal by the appellate - 5 - authority by order dated 14th October, 2004. 5. Mr. Balbhadra Singh, counsel for the appellant relied upon the judgment of this Court in the case of State of Bihar v. Ram Sarowar Prasad Singh, 2007(1) PLJR 42 and submitted that even if the appellant was convicted by a competent criminal Court, it was incumbent upon the disciplinary authority to give an opportunity of hearing to the delinquent on the quantum of punishment. The counsel would submit that since the opportunity of hearing on this aspect was not given, the punishment order is bad in law. 6. In the case of Ram Sarowar Prasad Singh the Division Bench considered the matter thus: - “6. We have threadbare considered the proposition of law relating to the provisions of Article 311, as well as, the service terms and conditions and the relevant rules. It is a settled proposition of law that generally a government employee or an employee in the public employment can be visited with major penalty like removal, dismissal and reduction in rank, provided charges are found proved by holding a departmental enquiry and affording opportunity of hearing. But the requirements are different in a case where such penalty is imposed on conviction by a competent criminal court. 7. Departmental enquiry forms proceedings in two parts, one is referable to the find of delinquency or guilt and upon find of such delinquency or guilt, the question would arise in the second phase as to what should be the quantum of punishment to be imposed upon a delinquent in a departmental domestic tribunal. So far as a person who has been convicted for an offence is concerned, there would not arise a question of reaching to a finding or conclusion with regard to the guilt as he has been finally found guilty for the offence committed, by the competent court. This may be a ground for imposition of major penalty but that is not all. 8. It must be mentioned here at this juncture that a disciplinary authority, by celebrated proposition of law is - 6 - obliged to consider various aspects before imposing penalty. It may also be further clarified that according to settled proposition of law, an employee under public employment or for that purpose, a government servant is required to be given a fair treatment which would imply opportunity of hearing on the quantum of punishment to be imposed by the disciplinary authority. Mere conviction does not “ipso facto” lead to penalty without giving opportunity of hearing. There is a purpose and policy behind it. 9. What is the nature of the offence, whether it is technical, whether it is petty, whether it is serious and the extent of the contribution of such person in perpetration of offence and alike questions are required to be considered by the disciplinary authority before inflicting any penalty, particularly a major penalty. The requisite procedure for giving an opportunity of hearing to the delinquent before he is visited with penalty on the basis of conviction recorded by the competent criminal court is admittedly not done in the present case.” 7. We are afraid, the aforesaid judgment does not have any application to the case of the appellant at all. As has been held by the Division Bench in the case of Ram Sarowar Prasad Singh, once a person has been convicted for an offence, there would not arise a question of reaching to a finding or conclusion with regard to the guilt as delinquent has already been found guilty of the offences committed by the competent Court. In the present case, the delinquent has been convicted by the criminal Court for having demanded an illegal gratification of Rs.2,500/- from a policy holder, namely, Manoj Kumar for expediting submission of enquiry report relating to death claim of deceased Jagadish Rai and also expediting payment of the corresponding claim amount. The delinquency of appellant was, thus, clearly established. The disciplinary authority has given notice to the - 7 - delinquent before imposition of major penalty of removal as is seen from the notice itself, which we have noticed to have. The delinquent did response to the notice and upon consideration of his written response, the disciplinary authority passed an order of removal. The course adopted by the disciplinary authority is in consonance with the principles of natural justice. Fair opportunity to show cause in respect of proposed punishment has been given to the delinquent before visiting him with punishment of removal. 8. Dismissal of writ petition by the Single Judge, in the circumstances, cannot be faulted. Letters Patent Appeal has no merit. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-