CWP No.10652 of 1999 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C. W. P. No. 10652 of 1999 Date of Decision: 9 - 7 – 2010 Gurmail Singh ....Petitioner v. State of Punjab and others ....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.J.S.Maanipur, Advocate for the petitioner. Mr.J.S.Puri, Addl. A.G., Punjab for the respondents. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) Petitioner was employed as a JBT teacher in Government Primary School Gurditpura, Block Doraha, Distt. Ludhiana. He joined as such on 9.9.1972. He was named as an accused in case FIR No.47 dated 30.5.1988 registered at Police Station Payal, District Ludhiana under Sections 307, 326, 324, 149, 148 IPC. He was tried by the Court of Additional Sessions Judge, Ludhiana and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- for offence under Section 307 IPC. It is also an admitted case of the parties that petitioner aggrieved against the same, filed a Criminal Appeal No.4-SB of 1999 which was dismissed. Petitioner also assailed his conviction and sentence by preferring a Special Leave Petition in the Hon'ble Supreme CWP No.10652 of 1999 [2] Court but failed to get any relief. Therefore, conviction of the petitioner for offence under Section 307 IPC stood affirmed. Consequently, he was dismissed from service vide order dated 6.5.1996, Annexure P5. In the present writ petition, petitioner has prayed for issuance of a writ in the nature of certiorari quashing the order of dismissal from service dated 6.5.1996, Annexure P5, passed by the District Education Officer (Primary), Ludhiana as well as order dated 27.1.1999, Annexure P9, passed by the Appellate Authority while dismissing the statutory appeal affirmed the findings recorded by the punishing authority. Mr.J.S.Maanipur, learned counsel appearing for the petitioner has confined his prayer to urge that the punishing authority had not assessed the conduct of the petitioner to reach at a conclusion as to whether it would be undesirable to keep him in service. Counsel further stated that judgment of conviction ipso facto cannot be relied upon to terminate the services of the petitioner. Counsel stated that it is incumbent upon the authorities to find out as to whether the conduct of the petitioner constituted moral turpitude or not. It is further urged that punishing authority came to the conclusion that conduct of the petitioner was such that he was to be fastened with conviction without applying mind to the proposition, whether the conduct which led to conviction of the petitioner was such that termination of his services was the only answer. Counsel stated that depending upon the facts and circumstances, petitioner can be fastened with minor penalty or any such other major penalty but not termination of his services. Counsel further stated that petitioner who has rendered 24 years of service could be prematurely retired. To fortify this submission, counsel for the petitioner has relied upon a judgment of this Court in Hari Ram v. Dakshin Haryana CWP No.10652 of 1999 [3] Bijli Vitaran Nigam Ltd. and another, 2006(2) RSJ 327 wherein relying upon the observations of Hon'ble Apex Court in Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416,a Division Bench of this Court observed as under:- “The law has further been clarified by the Supreme Court in the Union of India vs. Tulsi Ram Patel, AIR 1985 SC 1416. In the aforesaid case, it has been held as follows:- “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 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.” 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 CWP No.10652 of 1999 [4] 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 action of the management/employer 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.” Mr.J.S.Puri, Additional Advocate General appearing for the State of Punjab does not contest the legal proposition but has drawn my attention to order dated 27.1.1999, Annexure P9, passed by the Appellate Authority wherein it was held as under:- “......I have heard the arguments/position carefully told by him and I have also gone through the record of the case and have given a thoughtful view to the case under rules. A primary School Teacher, who has to teach tiny-tots, has a very responsible job to do. Otherwise also a teacher who is called a Nation builder, if convicted in murder case is not liable to be kept in Govt. job under Conduct Rules, 1966.” Mr.Puri has further stated that the punishing authority also specifically stated as under:- “.......Therefore, I reached the conclusion that Shri Gurmail Singh's conduct is not worthy of keeping him in Government service, and in this way he was awarded imprisonment of 7 years by the Hon'ble Court. ....” Having perused the orders of punishing as well as Appellate CWP No.10652 of 1999 [5] Authorities, this Court is of the view that the orders passed by both the authorities are general and vague in nature. No part of the judgment has been considered as to what was the genesis and origin of the occurrence, whether the petitioner was victim of circumstances or in fact he was guilty. Orders passed by both the authorities also reflect no application of mind to the extent whether conduct of the petitioner constitutes moral turpitude or not. The authorities had also not applied their mind as to what were the mitigating and aggravating circumstances. The authorities have also not opined whether punishment of termination was the only just answer or the petitioner could have been leniently dealt with. In these circumstances, orders Annexures P5 and P9 cannot be sustained in the eyes of law and are liable to be set aside. Hence, it is so ordered. Having set aside the orders Annexures P5 and P9, this Court is of the view that matter ought to be remanded back to the punishing authority to consider the case of the petitioner afresh by keeping in view the observations made in this order as well as affording the petitioner an opportunity of hearing. Since the petitioner after termination of his services has not performed the duties, the principle of `No work, no pay' shall apply and he shall not be entitled to any financial benefit. The authorities shall conclude the proceedings within three months from the date of receipt of a certified copy of this order. With the aforesaid observations, the present writ petition is disposed of. ( KANWALJIT SINGH AHLUWALIA ) July 9, 2010. JUDGE RC