1 S.B.C.W. NO. 5375/2003 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B.CIVIL WRIT PETITION NO. 5375/03 Ganpat Singh Baoria Vs. Jodhpur Vidhyut Vitran Nigam Ltd. Jodhpur & Anr. Date of Order : : 11.02.2009 HON'BLE MR. JUSTICE H.R. PANWAR Mr. S.L.Jain for the petitioner. Mr. Ravi Bhansali for the respondents. BY THE COURT By the instant writ petition under Article 226 of the Constitution of India, the order dated 12.9.2003 Annex.2 passed by respondent No.2 has been challenged. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that initially the petitioner was appointed as Class IV servant on permanent basis by order dated 8.8.1974, however, subsequently, he was promoted on the post of Lower Division Clerk (LDC) by order dated 11.10.1978 and since then the petitioner has been working as LDC with the Rajasthan State electricity Board (for short 'the RSEB' 2 S.B.C.W. NO. 5375/2003 hereinafter). However, by Notification of the State Govt. the RSEB constituted as many as five companies and the petitioner being the employee of the Erstwhile RSEB absorbed by the respondent No.1 company. After having absorbed with the respondent No.1 company, the petitioner was transferred to Sadul Sahar area and during that period while at Sadul Sahar, he suffered a fracture of femur bone and was admitted to Govt. Hospital, Ganganagar from 10.6.1995 to 14.6.95. However, at that time, a first information report came to be lodged by one Parasjeet Singh on 24.9.95 against the petitioner and four others for the offences under Sections 452, 325, 323, 147, 447, 148 and 149 IPC. After usual investigation, the police filed challan before the competent Court of Judicial Magistrate which tried the case and by judgment and order dated 01.8.2003, the Chief Judicial Magistrate, Ganganagar acquitted the petitioner of the offence under Section 447 IPC but convicted him for the offences under Sections 148, 323/149, 325/149 and 452 IPC and awarded punishment of two years, three months, three months and six months for the different offences noticed above and also imposed fine of Rs. 8000/-. Against the said judgment, the petitioner preferred an appeal before the Sessions Judge, Ganganagar and the sentence of imprisonment awarded came to be suspended by order of 3 S.B.C.W. NO. 5375/2003 Sessions Judge during pendency of the appeal. By order dated 12.9.2003 Annex.2, the services of the petitioner came to be dismissed by the respondents on the ground that he has been convicted on the criminal charge and the conviction renders his further retention with the respondents undesirable. According to the petitioner, Rajasthan State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1962 (for short 'the Regulations of 1962' hereinafter), have been framed in exercise of the powers conferred by Section 79 of the Electricity (Supply) Act, 1948 and these Regulations have been adopted by the new companies by notification of the State Govt. and the respondent No.1 Jodhpur Vidhyut Vitran Nigam Limited, Jodhpur has also accepted the said Regulations. Regulation 5 of the Regulations of 1962 deals with penalties and there are two types of penalties i.e. major penalties and minor penalties. The major penalties are reducing to a lower class, grade or post, compulsory retirement, removal from service and dismissal. Under Regulation 7, the major penalties can be imposed after holding an enquiry as prescribed. According to learned counsel for the petitioner, major penalty can be imposed only after holding an inquiry and in the instant case, no inquiry was conducted against the petitioner and without there being any inquiry, the petitioner has been dismissed from service. 4 S.B.C.W. NO. 5375/2003 Learned counsel for the petitioner submits that the Circular dated 3.9.75 issued by the Erstwhile RSEB has been superseded by Circular dated 26.10.81 Annex.3 which provides that as soon as the employees of the Board is convicted on a criminal charge, the disciplinary authority should consider the facts of the case and the quantum of punishment awarded and decide whether any penalty is to be imposed under Regulations of 1962. In case his continuance on Board duty is prima-facie undesirable on account of his conviction, he may be placed under suspension. However, such punishment of compulsory retirement, removal or dismissal from service only can be passed after the period of filing an appeal in criminal court is elapsed. The respondents filed a reply to the writ petition contending therein that undisputedly the petitioner has been convicted by the competent criminal court i.e. the Court of Chief Judicial Magistrate, Ganganagar for the offences under Sections 148, 323/149, 325/149 and 452 IPC and has been sentenced to undergo the imprisonment for various terms varying from 2 years to 3 months as mentioned in the order of conviction and sentence passed by the Chief Judicial Magistrate and in appeal only the sentence has been suspended. So far as conviction is concerned that has not been suspended and it cannot be said that the petitioner has 5 S.B.C.W. NO. 5375/2003 not been convicted on a criminal charge by a competent court having jurisdiction. According to learned counsel for the respondents, it is not the simple case of assault, the offences for which the petitioner has been convicted and sentenced are of serious nature including the offences of rioting armed with deadly weapons, causing simple and grievous hurts, forming unlawful assembly in prosecution of common object and House trespass after preparation for hurt, assault or wrongful restraint etc. The respondents have relied on a circular Annex.R/1 dated 3.9.1975 issued by Erstwhile RSEB providing action to be taken in cases where Board's employees are convicted on a criminal charge by a competent court of law, according to which, on conviction of Board's employee in a Court of Law, the penalty imposed under Regulation 8 (b) of the RSEB Employees (CC&A), Regulations, 1962 should commensurate with the gravity of the misconduct which led to his conviction. It further provides that in a case where a Board's employee has been convicted of an offence which is such as to render his further retention in service prima-facie undesirable, action to dismiss, remove or compulsory retire him from the Board's service should be taken promptly as soon as the conviction is pronounced by the trial court and according to the learned counsel for the respondents, the order impugned is in conformity with the governing provisions 6 S.B.C.W. NO. 5375/2003 and the Regulation of 1962 as also the Circular Annex.R/1, and therefore, calls for no interference. Learned counsel for the petitioner submits that after filing of the writ petition, the appeal filed by the petitioner being Cr.Appeal No.118/2003 against the judgment of conviction and sentence dated 1.8.2003 in Case No.276/97, has been partly allowed by the appellate court by judgment and order dated 29.10.2003 and the petitioner has been acquitted of the offences under Sections 452 and 325 r/w Section 149 IPC, however, the conviction of the petitioner was maintained for the offences under Section 148 and Section 323 r/w Section 149 IPC and instead of sentencing the petitioner at once to sentence of imprisonment, the petitioner was released on probation under Section 4 of the Probation of Offenders Act, 1958. The petitioner has placed on record the certified copy of the judgment and order dated 29.10.2003 passed in the said appeal. Learned counsel for the petitioner has relied on a decision of Hon'ble Supreme Court in State of M.P. and Ors. Vs. Hazarilal, 2008 AIR SCW 1354. In State of M.P. and Ors. Vs. Hazarilal (supra), Hon'ble Supreme Court observed as under:- “By reason of the said provision, thus, “the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a Government servant on the 7 S.B.C.W. NO. 5375/2003 ground of conduct which has led to his conviction on a criminal charge”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.” “An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. Hon'ble Supreme Court held that the Tribunal, in our opinion, rightly placed reliance upon the decision of Supreme Court in Shankar Das Vs. Union of India (1985) 2 SCC 358 wherein the Apex Court commended the judgment of a Magistrate of Delhi as he had let off the appellant therein under Section 12 of the Probation of Offenders Act stating as under:- “Misfortune dogged the accused for about a year..... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958.” Hon'ble Supreme Court further observed that 8 S.B.C.W. NO. 5375/2003 despite the said observation Shankar Das was dismissed from service. The matter was carried to the Hon'ble Supreme Court and the Hon'ble Supreme Court held as under:- “It is to be lamented 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 insofar 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 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. 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.” It has also been observed by Hon'ble Supreme Court that the legal parameters of judicial review has undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. Reference has been made to the decisions of Hon'ble Supreme Court in Indian Airlines ltd. Vs. Prabha D. Kumari (2006) 11 SCC 67, State of U.P. Vs. Sheo Shanker Lal 9 S.B.C.W. NO. 5375/2003 Srivastava (2006) 3 SCC 276 and M.P. Gangadharan and another Vs. State of Kerala and Others AIR 2006 SC 2360. Applying aforesaid principle, Hon'ble Supreme Court did not interfere with the impugned judgment therein passed by the High Court whereby the order of the State Administrative Tribunal, Gwalior allowing the original application challenging the punishment of removal from service on the ground of grossly excessive was not interfered with. Applying the principle laid down by the Hon'ble Supreme Court in State of M.P. and Ors. Vs. Hazarilal (supra), and keeping in view the facts of the instant case which are almost nearer to the facts of Hajari's case (supra), in my view, the punishment imposed by the respondents is disproportionate to that of the delinquency and therefore, cannot sustain. However, the fact remains that the petitioner has been convicted on a criminal charge and therefore, such a conviction falls within the ambit of misconduct under the Regulations of 1962 and therefore, the punishment of dismissal from service deserves to be modified to stoppage of two grade increments without cumulative effect. Consequently, the writ petition is allowed to the extent that the punishment imposed by the respondents by order Annex.2 dated 12.9.2003, is modified to the extent that 10 S.B.C.W. NO. 5375/2003 instead of punishment of dismissal of the petitioner from service, the punishment of stoppage of two grade increments without cumulative effect is imposed. In the facts and circumstances of the case, there shall be no order as to costs. (H.R. PANWAR), J. Rp