1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.586/05 Satya Narayan Sharma vs. Jaipur Vidyut Vitran Nigam Ltd. & Anr. Date of order : 29th September, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.C. Joshi for the petitioner. Shri J.K. Singhi for the respondents. ****** Petitioner has challenged the order of his dismissal passed by the respondents dated 29.5.2004. The order of dismissal is based on the conduct which has led to conviction on a criminal charge under Section 307 IPC. Shri R.C. Joshi, learned counsel for the petitioner has argued that according to Clause 7(2)(b) of the Employees (Classification, Control and Appeal) Regulations, 1962, the respondents were required to consider, whether or not the dismissal of the petitioner, in spite of his conviction, was justified. It was argued that dismissal could not be made mechanically merely because the aforesaid Regulation provides for such a power. It is contended that the competent authority is 2 required to apply its mind to the facts of the case and consider whether dismissal was at all necessary and the respondent could even consider awarding him penalty of compulsory retirement. Sentence of the petitioner for offences under Section 307, 323 and 324 as awarded by the trial court has been suspended by this Court in his appeal, which is pending hearing. Learned counsel in support of his arguments relied on the judgment of Surpeme Court in The Divisional Personnel Officer Southern Railway & Anr. vs. T.R. Challappan-AIR 1975 SC 2216 especially in para 21 of the report and argued that respondents ought to have served upon the petitioner notice prior to dismissing him from services. It is argued that the petitioner has served the respondents for 24 years and the respondents could instead of dismissing the petitioner from services, even impose upon him the penalty of compulsory retirement. Shri J.K. Singhi, learned counsel for the respondents argued that petitioner was convicted for the aforesaid offences and was sentenced to undergo rigorous imprisonment 3 of four years and pay penalty of Rs.1,000/-. Merely because the sentence has been suspended, conviction does not stand obliterated. Learned counsel referred to the Circular of the Government dated 24.01.1995 according to which it has been decided that if an employee of the respondent is convicted for an offence which is such as to render his further retention in service prima facie undesirable, action to dismiss/ remove / compulsorily retire him from Board's services should be taken promptly and that decision of an appeal, if any, filed in the matter, should not be awaited. Learned counsel relied on the judgement of Supreme Court in Union of India & Ors. vs. Ramesh Kumar-AIR 1997 SC 3531. Upon consideration of the arguments aforesaid and perusal of the material on record, I find that even the petitioner does not dispute the fact about his conviction. He however insists that since he has filed appeal and his sentence has been suspended, he should not have been dismissed or alternatively the respondents should consider awarding him penalty of compulsory 4 retirement. The judgement of Supreme Court in the Divisional Personnel Officer Southern Railway, supra cannot held the petitioner because that judgment turned out on its own facts. The Supreme Court while interpreting Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1968 held that the word “consider” as used in Rule 14, supra postulates consideration of all the aspects, the pros and cons of the matter after hearing the aggrieved person, but those observations were made in the context of the provisions of Rule 14 of the Railway Rules which provides that where any penalty is imposed on the railway servant on the ground of his conduct, which has led to his conviction, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit. The Supreme Court discussed the import of the word “consider” and in that context, the aforesaid observations were made. Here in the present case, the position is entirely different wherein because of Clause 7 of the Regulations of 1962 provides that procedure detailed above need not be followed or any 5 of its provisions waived, when the order of punishment such as dismissal, removal or reduction is based on facts, which had led to the conviction of the employee by a Court. The requirement of show cause notice, even otherwise, may not be necessary because the petitioner does not as a matter of fact dispute that he has been convicted. Mere suspension of the sentence would not entitle the petitioner to claim reinstatement in service. The Supreme Court in Ramesh Kumar, supra, held that suspension of execution of sentence does not result in order of conviction and of dismissal loosing their efficacy merely because sentence is not obliterated thereby. The Supreme Court in that case set aside the direction of the Central Administrative Tribunal that the government servant concerned be reinstated till final order passed in appeal. Contention that instead of dismissal the respondents should have decided to compulsorily retire the petitioner, cannot be accepted because within the range of choice i.e. dismissal, removal or compulsory retirement if the respondents have decided 6 to dismiss the petitioner for reason of his conviction for offence under Section 307 IPC for which he was sentenced to undergo rigorous imprisonment of four years. This Court cannot sit in appeal over the choice of penalty because penalty of dismissal on the ground of conduct which has led to the conviction of the petitioner under Section 307 IPC is grave enough to justify dismissal. There is no reason for this Court to hold why penalty of dismissal would not be justified in a matter of conviction for offence under Section 307 IPC and why the penalty of compulsory retirement would be justified for that matter. In view of the above discussion, I do not find any merit in this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/