CWP No.13228 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 30.05.2011 Dilshad Ali Vs. State of Punjab and another Present: Mr.RK Malik, Senior Advocate, with Mr.Vikas Chatrath, Advocate,for the petitioner. Ms.Charu Tuli, Senior D.A.G., Punjab, for the respondents. PERMOD KOHLI, J. The petitioner wile serving as a Lecturer in Geography, was involved in an FIR No.246 dated 07.12.1996 for the commission of offences punishable under Sections 406 and 498-A of the Indian Penal Code, registered at Police Station, Sarabha Nagar, Ludhiana. Charge-sheet was filed in the Court of learned Judicial Magistrate Ist Class, Ludhiana. On the conclusion of the trial, he was convicted for both the offences and was awarded sentence to undergo Rigorous Imprisonment for a period of six months and to pay a fine of Rs.500/- under Section 406 of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for seven days. He was further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- under section 498-A of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for seven days. The petitioner preferred Criminal Appeal No.18 of 04.05.2004 before the learned Additional Sessions Judge, Ludhiana. Learned counsel for the petitioner did not contest the appeal on merits and only prayed for release of the accused-petitioner on probation, pleading that he is the only CWP No.13228 of 2009 -2- bread earner of the family. It was further pleaded that the petitioner's wife had already taken divorce from him and he is working as a Lecturer. On this statement being made, the learned Additional Sessions Judge, Ludhiana, while upholding the judgment of the learned Trial Court, ordered the release of the petitioner on probation on furnishing a bond in the sum of Rs.10,000/- with one surety in the like amount for a period of one year and to keep peace and be of good behaviour and to come and receive sentence as and when called upon to do so, vide order dated 20.08.2008. By releasing the petitioner on probation, his appeal was dismissed. On his conviction in the aforementioned criminal case for the offences under Sections 406 and 498-A of the Indian Penal Code, the petitioner has been ordered to be dismissed from service vide the impugned order dated 19.11.2008. Legality and validity of the impugned order dated 19.11.2008 (Annexure P-2) is under challenge in the present writ petition. The challenge to the order is, primarily, on the following grounds:- (i) Mere conviction of an employee for a criminal offence is not enough to order dismissal from service unless the employer is of the opinion that the conduct of the government employee leading to his conviction involves moral turpitude. (ii) Dismissal being a major penalty, under Rule 5 (ix) of the Punjab Civil Services (Punishment and Appeal) Rues, 1970 (hereinafter referred to as the Rules), no major penalty can be imposed without serving a charge CWP No.13228 of 2009 -3- sheet and holding an enquiry in accordance with the procedure prescribed under Rule 8 of the Rules. (iii) The petitioner having been released on probation is not liable to be dismissed from service. From the perusal of the impugned order dated 19.11.2008 (Annexure P-2), it is evident that dismissal of the petitioner from service is solely on his conviction in the criminal offence and the government instructions dated 05.08.1998, which, inter-alia, permit the dismissal of the government employee on his conviction without any departmental enquiry. I have heard the learned counsel for the parties at length. Dismissal of an employee on his conviction on a criminal charge is contemplated in Article 311 (2), clause (a) to second proviso of the Constitution of India. The same is reproduced hereunder:- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in CWP No.13228 of 2009 -4- respect of those charges Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply (a) 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; or” Under Article 311 (2) of the Constitution of India, dismissal or removal or reduction in rank of a member of civil service is permissible only after an enquiry and providing an opportunity of being heard in respect of the charges. Second proviso, however, categorically excludes the application of clause (2) of Article 311 of the Constitution of India, 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. It is interpretation of these provisions which is the subject matter of controversy in the present writ petition. Learned Senior Counsel appearing for the petitioner has relied upon various judgments in support of his contention that termination of a government employee from service merely on conviction for a criminal offence, without reference to the conduct of the employee which led to his conviction, is not sustainable. The judgments relied upon by the petitioners CWP No.13228 of 2009 -5- are being noticed hereunder:- Om Parkash, Postman Vs. The Director Postal Services (Posts and Telegraphs Department) Punjab Circle, Ambala and ors., 1971 (1), S.L.R., 648. A Full Bench of this Court in the above said case, considered the validity of the order of dismissal of the government employee on his conviction and release on probation under the Probation of Offenders Act. The employee was convicted for offences under Sections 420/511/465/471 of the Indian Penal Code, wherein it has been held as under:- “As we have decided to set aside the impugned order on this ground it is not necessary to deal with the fourth submission of Mr. Harbans Lal about the appellate order upholding the order of dismissal being bad on account of non compliance with the requirements of rule 27 of the 1965 Rules, inasmuch as it has not dealt with the justification for the quantum of punishment. For the foregoing reasons, it is held that: (i) The departmental punishment of removal or dismissal from Government service is not an essential and automatic consequence of conviction on a criminal charge. (ii) the authority competent to take disciplinary action under rule 19 (i) of the 1965 Rules against a Central Government servant convicted on a CWP No.13228 of 2009 -6- criminal charge has to be consider all the circumstances of the case and then to decide (a) whether the conduct of the delinquent official which led to his conviction is such as to render his further retention in public service undesirable; (b) if so, whether to dismiss him or to remove him from service or to compulsorily retire him; and (c ) if the said conduct of the official is not such which render his further retention in service undesirable, whether the minor punishment, if any should be inflicted on him. (iii) to be punished departmentally for misconduct is not a “disqualification” within the meaning of section 12 of the Act, but is a liability under the relevant service rules; (iv) XX XX (v) The liability to be departmentally punished for conduct which has led to the conviction of the employee does not attach to the conviction, but attaches to the original conduct (Misconduct) which constituted the offence of which the official has been convicted; (vi) XX XX (vii) Whereas in the case of a conviction, the application of the purview of Article 311 (2) is excluded by proviso (a) to that provision and the CWP No.13228 of 2009 -7- application of rules 14 to 18 of the 1965 rules is excluded by rule 19 (i) of those rules, the application of the principles of natural justice is excluded by the proviso to Article 311 (2) red with the purview of Article 310 and by the operation of rule 19 in view of the fact that the concerned Government servant must naturally have had full opportunity to defend himself in the Criminal Court, where the conviction can be recorded only after returning a finding of guilt on the basis of a much higher standard of proof than that which is enough for punishing a person in departmental proceedings; (viii) Section 12 of the Act does not wash away or obliterate the conduct of the employee which has led to his conviction, and does not, therefore, give him any immunity against departmental proceedings, nor exonerates him from his liability to departmental punishment for such conduct if it amounts to misconduct under the relevant services rules; (ix) (x) (xi) XX XX (xii) an order of dismissal or removal or for compulsory retirement can be passed under rule 19 CWP No.13228 of 2009 -8- (i) (without conforming to the procedure prescribed in rules 14 to 18) not on the basis of the conviction, out only if the competent authority finds that the relevant misconduct of the concerned Government servant renders his further retention in public service undesirable; and (xiii) an order imposing a punishment on a Government servant simply because of his conviction on a Criminal charge without reference to the conduct which led to the conviction cannot be sustained.” In Union of India Vs. Tulsi Ram Patel, AIR 1985, Supreme Court, 1416, the Hon'ble Supreme Court while considering the issue of imposition of penalty on conviction observed as under:- “Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the criminal Court and consider all the facts and circumstances of the case. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his CWP No.13228 of 2009 -9- dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the government servant concerned by reason of the exclusionary effect of the second proviso. However, a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the government servant, concerned and, therefore, it is not mandatory to impose any of these major penalties.” In Hari Ram Vs. Dakshin Haryana Bijli Vitaran Nigam Ltd. and another, 2006 (2) SCT, 112, a Division Bench of this Court, following the judgment in Tulsi Ram Patel's case (supra) observed as under:- Keeping in view the aforesaid observations of the Supreme Court, we have examined the record produced by the respondents. A perusal of the record shows that the respondents have not paid any attention to the conduct which led to the conviction of the petitioner as required by law. It was necessary for the respondents to examine the judgment of the Criminal Court and to assess the conduct of the petitioner to reach a conclusion as to whether it would be undesirable to keep him in service. The auction of the management/employer CWP No.13228 of 2009 -10- must be based on relevant considerations. The impugned order in our opinion suffers from the vice of non-application of mind. Consequently, we are of the opinion that the impugned order deserves to be quashed on this short ground.” In Shankar Das Vs. Union of India, AIR 1985, Supreme Court, 772, a government employ convicted under Section 409 of the Indian Penal Code, was dismissed from service, but released on probation. It was observed by the Criminal Court while releasing him on probation that it was under the course of adverse circumstances the accused had held back money in question. Considering the validity of dismissal order, Hon'ble the Supreme Court observed as under:- “It is to be learned that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. 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 CWP No.13228 of 2009 -11- Government servant who is convicted for parking his scooter in a non-parking area should be dismissed from service. 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 or 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. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.” Opposing the contention of the petitioner and justifying the action of the State-respondents in dismissing the petitioner on his conviction, Mr. Charu Tuli, learned Senior Deputy Advocate General, Punjab, relied upon the following judgments:- In Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, (1995) 3, Supreme Court Cases, 377, it has been held as under:- “9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis CWP No.13228 of 2009 -12- or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311 (2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The, other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this court in Shankardass v. Union of India (1985 (2) S.C.R. 358): "Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the government the CWP No.13228 of 2009 -13- power to dismiss a person from services "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 service. 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 Ram Kishan and others Vs. State of Rajasthan, (1997) 7, Supreme Court Cases, 518, it is held as follows:- “A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Govt. servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentences by the Appellate Court the order of dismissal based on conviction stands obliterated CWP No.13228 of 2009 -14- and dismissed Govt. servant has to be treated under suspension till disposal of the appeal by the Appellate Court filed by Govt. servant for talking action against him on the ground of misconduct which has led to his conviction by competent Court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a component Court of law has not lost its string merely. Because a criminal appeal was filled by the respondent against his conviction and the Appellant Court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angles. Under Section 389 of the code of Criminal Procedure, the appellant Court has power to suspend the sentence and to release an accused on bail. When the appellant Court suspends the execution of sentences, and grants bail to an accused the effect of the order is that sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other words, by suspension of execution of sentence under section 389 Cr. P.C. an accused avoids undergoing sentences pending criminal appeal. However, the CWP No.13228 of 2009 -15- conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a Govt. servant on a misconduct which led to his conviction by the Court of law does not lose its efficacy merely because Appellant Court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell in error in holding that by suspension of execution of sentence by the appellate Court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of Criminal Appeal by the High Court.” Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank, (2010) 8, Supreme Court Cases, 573. In this case, a bank employee was convicted under Section 409 of the Indian Penal Code. He was released on probation under the Probation of Offenders Act, though conviction was maintained. The employee was dismissed from service by issuing a Show Cause Notice. The Tribunal maintained the dismissal and a wit petition by the aggrieved employee before the High Court was also dismissed. The award of the Tribunal and order of the High Court came to be challenged before the Hon'ble Supreme Court, wherein it has been held as under:- “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 CWP No.13228 of 2009 -16- 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 abovereferred 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.” In view of the above judgments, the Hon'ble Supreme Court has clearly and categorically ruled that an employee convicted for a criminal charge can be dismissed from service either by initiating disciplinary proceedings or otherwise even without disciplinary proceedings. It is relevant to notice that Hon'ble the Supreme Court has considered the judgment of Hon'ble Supreme Court rendered in Union of India Vs. Tulsi Ram Patel's case (supra) in Shankar Das Vs Union of India's case (supra). Reliance has also been placed by the learned counsel for the respondents in the case of State of Haryana Vs. Balwant Singh, (2003) 3, SCC, 362. In this case, disciplinary proceedings were initiated against the Bus Driver of Haryana Roadways for causing death of a person and injuries to another by a rash and negligent driving. He was awarded penalty of CWP No.13228 of 2009 -17- reduction of pay to minimum of the pay scale in departmental proceedings. Simultaneously, a challan under Section 304-A of the Indian Penal Code was also filed in the criminal Court. After the departmental penalty was imposed upon the driver, he was convicted in the criminal case. Based upon his conviction, he was dismissed from service without any further departmental enquiry by issuing a notice. The driver pleaded double jeopardy claiming violation of Article 20 (2) of the Constitution of India and on various other pleas. Civil Suit filed by him was allowed and the order of dismissal was set aside up to the High Court. Hon'ble the Supreme Court, however, reversed the judgments and upheld the order of dismissal holding that both the penalties arise out of different causes of action. In this case, termination without enquiry was upheld. In these judgments, it has been held that when the employee is convicted of a criminal charge, no enquiry need to be held. In so far as the question of impact of release on probation is concerned, there is catena of judgments wherein it has been held that release on probation does not wash away his conviction. In Hari Chand Vs. Director School Education, (1998) 2, Supreme Court Cases, 383, Hon'ble the Supreme Court observed as under:- “In our view, Section 12 of the Probation of Offenders Act would apply in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words “disqualification, if any, attaching to a conviction of an offence under such law” therein. Where the law that provides for an offence and its CWP No.13228 of 2009 -18- punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purpose of dismissal of the person convicted from government service.” In Divisional Personnel Officer, Southern Railway and another Vs. T.R. Chellappan, 1976 (3) SCC, 190 : (AIR 1975, Supreme Court, 2216), it has been observed by the Hon'ble Supreme Court that conviction of an accused for the finding of the Court that he is guilty, does not stand wash away i.e. sine qua non, for the order of release on probation. The order of release on probation is merely in substitution of the sentence