./W HIGH COURT OF CHI-IATTISGARHLBILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition (s1 No.7ss/2oo5 PETITIONER Punaram Sahu Versus RESPONDENTS Govt. of Madhya Pradesh 85 Ors. ORDER POST ON €“éEPTEMBER, 2010 Vt , Sd/_ Manindra Mohan Shrivastava Judge ‘? i HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVAJ. Writ Petition (S) No. 788/2005 PETITIONER Punaram Sahu Versus RESPONDENTS Government of Madhya Pradesh 86 Others Appearance: Shri V.G. Tamaskar, counsel for the petitioner. Shri V.V.S. Murthy, Dy. Advocate General for’the State. O R D E R (Passed on g 09.2010) 1. By this petition, correctness, legality and validity of order dated 14.9.1992 (Annexure A~1), by which the services of Punaram Sahu- deceased petitioner have been terminated, has been assailed. 2. Before proceeding to deal with the matter and issue, it be noted that during the pendency of the petition, the original petitioner— Punaram Sahu died and his legal representatives were allowed to be substituted h V L > r / . in his place and to prosecute the petition. v 3. Shorn of unnecessaryidetails, the petitioner while working as Upper Division Teacher’in Government School, was prosecuted for alleged on, commission of offence under Sections 302 read with Section 34 of the IPC on the allegation of causing death of one Derhin Bai. Puna Ram was prosecuted along with four other co—accused person in S.T. l J No.65/1979, which was decided on 15.9.1979. Vide judgment of I l l l ‘11 conviction and order of sentence dated 15.9.1979, Puna Ram and three other accused persons were found guilty and convicted runder Section 304 (Part-II) read With Section 34 of the IPC and the petitioner was sentenced to undergo R.I. for 5 years. However, on appeal against the order of judgment of conviction, the judgment of conviction and sentence under Section 304 (Part-II) of the IPC was set aside and the same was converted to Section 323 of the IPC and the sentence was reduced to imprisonment of 45 days which the appellant had already undergone. . The deceased petitioner submitted representation for revocation of his suspension and his reinstatement, as he was continuing on suspension on account of pendency criminal case against him. Finally, impugned order dated 14.9.1992 (Annexure A-l) was passed by which the services of the petitioner were terminated on the ground of his conviction under Section 323 of the IPC. The petitioner preferred a departmental appeal on 30m October, 1992 (Annexure A—8) that he be reinstated in service as termination on the basis of his conviction under Section 323 is not warranted and the order of termination has been passed mechanically without considering the circumstances of thb case. He also submitted in his appeal that the alleged incident leading to hisicgnviction and his conduct do not relate to commission of any act during the discharge of any duty nor at the place of his job. It was also submittedvbefore the Appellate Authority that the same is neither serious offence norii‘ffVOlves moral turpitude. As the said appeal of the petitioner failed to evoke any response, instant petition has been filed by the petitioner. 5. Learned counsel for the petitioner further argued that the conviction is based on conduct, which does not involve moral turpitude. Petitioner’s termination is not permissible under the law. Learned counsel for the petitioner relies upon the judgments in the cases of Dr. Naresh Agarwal and others Vs. State of Rajasthan and othersl 85 Ghasi Lal Ora Vs. Jaipur Vidyut Vitaran Nigam Ltd. and another? 6. The second limb of submissions of learned counsel for the petitioner is that even assuming that such a power of termination vests in the Authority in cases of conviction on a criminal charge, under the provision contained in Rule 19 of M.P./C.G. Civil Services (Classification, Control 8L Appeal) Rule, 1966 (hereinafter referred to as “the Rules of 1966”), the Authority was nevertheless under statutory obligation to'apply its mind to the facts and circumstances of the case and then only decision with regard to nature land extent of penalty to be imposed on the basis of conviction, could be taken. He further argues that perusal of the impugned order shows that the authority without any application of mind to the entire facts and circumstances, nature and gravity of conduct, which led to conviction and other » attending circumstances, mechanically passed the order of termination 3 .. / only on the ground of conviction. V 7. On the other hand, submission of learned counsel for the respondents is that in case oflconviction on a criminal charge, service could be terminated under Ruleil‘9iof the Rules of 1966, which empower the authority to pass such an order without there being any requirement to hold elaborate enquiry as prescribed under Rule 14, 15 or 16 of the 1 2001 (7) SLR 131 2 2003 (1) SLR 729 §udhir Vishnu Panvalka: Vs. Bank of Indja3, Kendriva Vidvalasg Ram Ratan Yadav". Municipali Cgmmittee, Sirsa Vs. Munshi Ram5 6a Jaswant Singh Gill Vs. Sangathan Vs. Bharat Coking Coal Ltd. 85 & . 0rs.6.r / \.. 8. The source of power and authority to terminate services based on conviction is foundi in Rule 19 of the Rules of 1966, which 1's reproduced as under: 3AIR 1997 SC 2249 4 AIR 2003 sc 1709 5 AIR 2005 SC 792 5 (2007) 1 SCC 663 " 19. Special procedure in certain cases— Notwithstandi anything contained in rule 4 to rule 1:- (i) where any palty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) Where the disciplinary auority is satisfied for reasons to be recorded by it in writing that it is not reasonabl practicable to hold an inquiry in the manner proided in these rules, or (iii) Where the Governor is satisfied tat in the interest of the security of the tate, it is not expedient to hold any inquiry in the manner provided in these rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in ‘any cas under this le.” A perusal of the aforesaid rules shows that where alleged conduct has led to conviction on a crimial charge, appropriate n penalty may be imposed on th Government servant on the ground e ofuch conduct. Rule 19 provides for those cases where elaborate ‘ “’s enquiry urfder Rule 14 to Rule 1 of the ules of 1966 is not ’ 8 R necessary. There is inothing in the aforesaid provision which restricts the authority to impose penalty, iluding termination from nc services on the gdndzof conviction only in a case where a ru’ conviction involves mora urtude. The provision contained in Rule 19 (i) of the Rules of 1966 is clear and specific and it nowhere says that the conduct must necessary involve moral turpitude. Reliance ng 1 8 en th y v h S e ru l tpi a (25 on the decision in the case of Ghasi Lal ora (supra) 85 Dr. Naresh Agarwal (supra) is misplaced. In those cases, relevant rule under consideration provided that action may be taken on the basis of conviction for offence involving moral turpitude. However, in the present case, the Rules applicable do not make any such provision. Though, it has been held that conviction for offence under Section 323 of the IPC does not involve moral turpitude, however, there is no such rider imposed on the authority under Rule 19 of the Rules of 1966, which apply in the present case. 9. The other submission of learned counsel for the petitioner that the order has been passed mechanically, without taking nto consideration the facts and circumstances of the case and gravity of alleged act, requires consideration. A reading of the provision contained in_Rule 19 of the Rules of 1966 would show that though elaborate procedure for holding regular departmental enquiry in such cases of conviction may not be necessary before imposing any penalty including a penalty of removal/dismissal from service, yet the words “may consider the circumstances of the case” postulate consideration of all aspects. a. The word ‘consider’ has been used in contradistinction to the word ‘det§’r?n:ine’. The Rule Making Authority deliberately used the word ‘consider’ and riot ‘determine’ because the word ‘determine’ has much Wider scope. The word ‘consider’ merely connotes that ~there should be acti‘ie"*‘application of mind by the Disciplinary Authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent‘employee on his conviction on a criminal charge. §~ i qé The term ‘consider’ therefore, postulates consideration of all the aspects, the pros and cons of the matter. 10. In the opinion of this Court, though there is a power conferred on the authority to take appropriate disciplinary action on the basis of conduct which led to conviction on a criminal charge, yet the same cannot be mechanical and the authority must consider whether in View of conviction, What penalty, if at all, should be imposed on the delinquent employee. The authority will have to bear in mind the entire conduct of the employee; the gravity of misconduct committed by him; the impact which his misconduct is likely to have on the administration and other extenuating circumstances, if any. Whether in a given case, the conduct which has led to conviction on a criminal charge involves moral turpitude or not may be a relevant consideration in coming to a conclusion With regard to the nature and extent of penalty to be imposed. If the‘correctness and validity of impugned order is judged in the light of statutory obligation to consider as required under Rule 19 of the Rules of 1966, it is found that the impugned order is a mechanical exercise of power by the authority. There is no consideration of the attending circumstances, ”the entire conduct of employee, the” gravity of misconduct committed by him aifd’bther releyant circumstances including as to whether it involves moral turpitfade or not, before deciding to terminate the services on the ground of conviction on a criminal charge. From the return of the respondeffftsalso it is not divulged that the competent authority applied its mind to various relevant circumstances. § 11. The ratio of the judgment in the case of Sudhir Vishnu Panvalkar (supra), is not applicable to the facts and circumstances of the present case. In the case of Sudhir Vishnu Panvalkar (supra), the order of termination was upheld on the ground that the employee was ‘involved in misappropriation of Society’s fund and he was found guilty of cerain charges involvi moral ‘tpitude relaing to t ng ur t misappropriation of Siety fund. oc In the cae of Municipal Committee (supra) and Jaswant Singh Gill (sura), different question aros for consideration and ey are p e th t applicab nor an authoriy for the proposition that in all cases, no le, t conduct, which led o conviction on a criminal charge, it‘is imperative t to terminate the services without further consideration or examinatio of te attenn circumstances. n ohr dig As an upst of discussions as above, the impugned order is declared illega and hereby set aside, the matter is remitted to the Competent Authority t consider the entire case of the deceased o o ova a petitiner in the light of the bsertions made by this Court nd take fresh decision with regard to the penalty that may be imposed taking’into consideration the nature and extent of gravity of conduct and other attending circumstanes. If, s a result of the decision, it is c a V foun that any monitmiy benefit would have accrue or other d d consequential benefit ensue, petitioners, legal representatives of the deceased employee, wouldfbetentitled to the same. l3. Petition is accordingly partly allowed to the extent and in the manner indicated above. Manindra Mohan Shrivastavi Judge Sd/- Praveen ho l