•^ IN TH£ KZiSi CQU&I OS' JUBICA2URB Al BJ-LASPUR (C.G.} Wr.tt ^etitisn Ns. ^.853 /28®3.•' gSTXIIOKBR Versus 1 ? T iu.SPQMDSKBS ^^ ....-,^s> ^vy K>"" l^ 'SR.[T_eSTI?IwN_,UNDSR AitXKiiS Kushal Singh SalSt S/a 3ri Shasha Siagh Haik, Agsd afeaut 46 years, K/o Vilisge-Mardum Distt " Sastar (G.u.) State ef c.G. Shreug'a Diviaisnal F®r<"stCffieer ', Dlstt- Sastar, ?®rastCenservater, Jagidalsur. .ais'ct- 3astar, 226/227 GF CONSIiruriON O? BCTIA -J; RB' !"" AF/^ 2.9 -, .0 b 73 HIGH COURT OP CHHATnSGARH AT BILASPUR Writ Petition No. 2899 of 2003 Petitioner : Kushal Singh Naik Versus Respondent State of Chhatdsgarh & ofh.ers .-^l-^l' Post for order on2& Pebruaiy, 2006. Sd/- Satish K. Agniliotri Judge it»ii iv *? rar . HIGH COURT OF CHHATQSGARH AT BIIASPUR Writ Petition No. 2899 of 2003 Petitioner Versus Respondent Kushal Singh Naik State of Chhattisgarh & others Sing^e Beach; Hon'ble Mr, Justice Satteh K. Agnihotri. Sliri Manoj Paraiijpe, Advocate for ftte petitioner. T Shri Sandeep Dubey, Govt, Advocate for the respondents. ORDER (SiS^i'ebmaiy, 2006) The foUowmg order offhe Court was passed by Satish K. Agnihotri, J. 1. The facts ia nut sheU as stated by fhe petitioner are fhat fhe petitioner was uiitiaUy appointed as a Koop-Guard iu fhe year 1977. The petitioner fhereafter was promoted to the post of Forest Guard. 2. One Liti Ram Mandavi lodged an F.I.R. agaiast fhe petitioner aUegfaig fhat the petitioner has used abusive language against fhe complamant wifh intent to insult and huimliate the coinplainaat, who is a member of Scheduled Tribe on 11.9.2002 in the polfce station Ajak, Jagdalpur. The case was registered under sections 294 aad 506- II offhe Indian Penal Code (for short 1.P.C.') read with Section 3(l)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atoocities) Act, 1989 (for short 'the Act, 1989). Prosecution for offences under section 294 and 506 Part-II ofttie I.P.C. on the basis of the appUcatioa dated 30.6.2003 for couipromise, filed by the couiplauiaat Liti Ram. Maadavi,. was dropped. The offence under section 3(1) (x) offhe Act, 1989 te not compouudable and as such it could uot be coiapoiuided. Accordingly, the petitioner was dischai^ed ;?:;!®f from. the ofFences punishable under section 294 aad 506 Part-II of the I.P.C. Witii regard to the offence under section 3(1) (x) of the Act, 1989, leamed Special Judge came to fhe conclusioa that fhe petitioner was guilly of using abusive laaguage with intent to iusult and huuuliate a person of the Scheduled Tribe- fhe CQ:mplaman.t aad accoidingly hcld that fhe petitioner has coiiunitted an offence uiider section 3 (l)(x) ofthe Act, 1989. On. fhe question ofconviction learaed » Special Judge by fhe judgment and order dated 11.7.2003 (Aunexure P/1) awarded oae year's rigorous iinprisoiuaent wifh payment of fine of Rs. 1000/- as penalty, ia dcfault, to further undei^o three inontiis rigorous unprisoninent, additionally. 3. The petitioner ffled an appeal being Criimnal Appeal No. 812/2003 against fhe judgment and order dated 11.7.2003 ia this Court. This Court vide order dated 31.7.2003 stayed fhe conviction. The appeal is pendiag consideration. 4. On fhe basis of fhe conviction passed by a criminal Court, tiae Divisioual Forest OfBcer, Baster (T) Forest Division, Jagdalpur dismissed fhe petitioner fmm. service as specified in Rule 10(ix) of the Madhya Pradesh Civil Services (Classificatioa, Control and Appeal) Rules, 1966 (for short 'tfae State Rides,1966'j by order dated 29.7.2003 (Annexitre P/3) iinder Rule 19 (i) ofthe State Rules 1966 . The petitioner fUed a representation to the Chief Conseryator of Foicst, Raipur submittiug fhat since the cruninal appeal is pending consideration befoie the High Court and fhe conviction passed by the Special Judge has been stayed by fhe High Coiirt, fhe petitioner should be reinstated tiU fhe order of fh.e High Court is passed in appeal. No order on his representation was passed. iiii3S3£ ::r b. Rule 23 of fhe State Rules 1966 provides for statutory appeal agaiast an order iaiposiitg any of fhe peaalties specified iu. Riile 10 of the State Rules 1966 by the disciplmary aufhorily or appellate authorily or reviewiag authority. The petitioner wifhout resorting to the altemative remedy of filiug statutoiy appeal, has filed this petition before this Court under Ardcle 226/227 of fhe Constitution of India seeking a writ of certiorari for quashing fhe impugned order dated « 29.7.2003 passed by fhe Divisional Forest OflScer, Jagdalpur and further a direction to reinstate the petitioner in service. Shri Maaoj ParEuijpe, learaed counsel appearing for the petitioner submitted that altemative remedy as provided uader Rule 23 of the Rules, 1966 is a tinie cousumiag process aad no useful purpose would be served if fhe petitfoner is driven to take resort to the altemative remedy as provided under Rule 23 ofthe State Rules 1966, Learaed counsel further subinitted that in the facts and circiunstances of the case thc penatty of dismissal iinposed upon fhe petitioner iinder Rule 19 (i) of the State Riiles 1966 is arbitraiy and whimsfcal. Leamed counsel further submitted fhat. the penalty iiuposed oa the basis of the conviction by fhe crirainal Coiut is excessivc in view ofthe fact that overall conduct ofthe petitioner has to be looked iEtto to decide whether nioral turpitude is involved to impose extreme piuushment of dtemissal fiioia service. Ptenalty of dismissal firom service is disproportionate to fhe alleged conduct of fhe petitioner. It was next contended fhat the conviction of fhe petitioner under section 3 (1) (x) of the Act, 1989 does not involve inoral turpitude so as to depri.ve the petitioner froiii opportunity to scrve fhe State. The irupugned order iinposuig the penalty of dismdssal wifhout holding even summaiy enquiry is arbitrary and iUegal. 8. Shri Sandeep Dubey, leam.ed Govt. Advocate appearmg for the respondents, per contra, submitted that this petition should be dismissed OD. fhe ground ofavailability ofthe altemative reinedy. Rule 23 of the State Rules 1966 provides for statutory appeaL The petitioner should not be permitted to bypass the altenaative reniedy of fhe statutoiy appeal before approaching ftiis Court under Article 226/227 of the Constitution of India. Leamed counsel furfh.er subinitted that Rule 19 of fhe State Rules 1966 is Non-obstante clause and for imposition of a pcnalty on the Govt. Servant which has led to his conviction on a criminal chai^e, no enquiry/notice is required to be held/given before imposing the penalty. 9. It was next contended that Second proviso to Article 311(2) of the Constitution of India provides that "Article 311 (2) shall not be appUcable to a case where a person is dismissed or reinoved or reduced ia rank on the ground of conduct which led to Iiis conviction on a criminal charge. Hence, the requireinent of evea suininary enquiry or nbtice is not necessaiy in case of imposition of penalty of disinissal on the groiind ofconduct whfch has led to his convfction on. a cruninal charge. 10. I have heard leamed counsel for the parties aud have perased the docuinents appended to the petition as weU as to retura filed by thc responden^ts. 11. This petition has been filed on 12.9.2003. I am offhe opinion that in view of the statutoiy provisipns, avaUing altemative reinedy of the statutory appeal, before approachmg this Court, wffl not provide an ef6cacious remedy. Thus, the matter is being considered in ti.us ;;EpP- petition without directing tfae petittoncr to avaU altemative remedy of statutoiy appeal, first, then come t6 this Court. 12. The petitioner was dismissed from service as specified in Rule 10 (ix) ofthe State Rules 1966 on the ground ofconduct which has led to hra conviction on criminal charge. Riile 19 of tfae State Rules 1966 reads as under:- 19. Special procediire ui certain cases.- Notwithstanding anytluag contained in rule 14 to 18:- * (ij where any penalty is iinposed on a Govenunent servant on fhe ground of conduct which has led to his conviction on a criminal char^e, or (ii) where the disciplinary authority is satisficd for reasons to be recorded by it ia writing that it is not reasonabty practicable to hold an inquiiy in the manncr provided jn ttiese rulcs, or (iu) where thc Govemor is satisfied that in the inte.rest of the security offhe State, it is not expedient to hold any inquuy in the inanner piovided in these rules, the disciplinaiy authority raay consider fhe ciTcuinstances of the case and make such oiders thereon as it deeias fit: Provided fhat the CoTnmission shaU be consulted where such consultation is necessaiy, before any orders are inade in any case under ttus rule." 13. Rule 19 ofthe State Rules 1966 is a Non-obstante provision aad has overridiDg effect on other provisions under Rule 14 to 18 of the Rules, 1966. Rules 14 to 18 of the Rules, 1966 provides for procedure for 'unposing. penalties, as such, procediire for iinposing penalties as provided in Rules 14 to 18 are not appUcable in case of aay penalty imposed on a Govt. Servant on the giound of conduct which has led to his convictioa on a criininal cbarge. Admittedly, the petitioner was convicted for aa oflfence under Section 3 (l) (ix) of the Act, 1989. Second proviso to Article 311 (2) of the Constitution of India was iucorporated iu the Constitution by fhe (Porty-second Amendment) Act, 1976 (w.e.f. 3.1.1977). Second proviso to Clause (2) ofArticle 311 provides that clause (2) shaU not apply in certain cases, inter aUa, in cases where a person is disiaissed or reruoved or reduced ui rank on tfae ground of conduct which has led to his convfction on a crimmal charge. Article 311 reads as under:- t "311. Disnussal, reinoval or reduction in rank ofpersous einployed in civil capacities under the Union or a State-(l) No person who is a inember of a civil semce of the Union or aa all-India service or a civil semce of a State or holds a civil post iiuder the Utiion or a State shaU be dismissed or reinoved by an authority subordiaate to that by which he was appomted. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiiy ia which he has been iaformed of the chai^es agamst hira and given a reasonable opportunity ofbeing heard ia respect ofthose charges." Provided that where it is proposed after such inquiiy, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced dzuing such inquiiy and it shaU not be necessaiy to give siich person any opportunity of luaking representation on the penatly proposed: Provided furfher fhat this clause shaU not apply- (a) where a persori is dismissed or reinoved or reduced in rank on the ground ofconduct which has led to his conviction on a crimuial char^e; or (b) where fhe authonty empowered to dismiss or reinove a persoa or to reduce hun in raak is satisfied fhat for soine reason, to be recorded by that aufhorily in writing, it is not reasonably practicable to hold such inquuy; or (c) where fhe Presideat or the Goveraor, as the case may be, is satisfied fhat in fhe interest of thc securily of the State it is not expedient to hold such iaquuy. ___. -^^ ^y (3) If, iu respect of aay such person as aforesaid, a questiDa arises whefhei- it is reasonably practicable to hold such iuquiry as is referred to in clause (2), the decision fhereon of fhe authorily einpowered to disniiss or reinove such person or to reduce hini in rank shall be final.1' a:i: |- -?<'^ 14. Second praviso to clause (2) ofthe Ardcle 311 ofthc Constitution was considered by fhe Supreme Court of India in Unioa of India and another Vs. Tulsiram Patel1 wherein in paras 54, 61 and 62 held as uiider;- "54. Clauses (1) aud (2) ofArticle 311 iinpose restrictions upon the exercise by the President or fhe Govemor of a State of his pleasure under Article 310 (1). These are express provisions with respect to terminatiou of service by dismissal or removal as s3ao wifh respect to reduction io: rank of a civil servant and thus come within the ambit of fhe expression "Except as otherwise provided by this ''Constitutiou" qualtfymg Article 310(1). Article 311 is thus an exception to Ardcle 310 and was described in Parshotam Lal Dhingra v. Umon of India, 1958 SCR 828, 839 : (AIR 1958 SC 36 at P.41) as operating as a pioviso to Article 310 (1) though set out ia a separate Article. Artfcle 309 is, however, not such aa exception, It does not lay down aay express provision which would derogate &ovi the ainplitude of the exercise of pleasure under Article 310 (1). It inerely confers upon the appropriate Legislature or executive the power to inake laws and Iraine rules but fhis power is inade subject to the pronsions ofthe Constitution. Thus, Article 309 is subject to Article 310 (l) and any provision restricting fhe exercise ofttte pleasure offhe President or Govemor in an Act or rulc made or framed under Article 309 not being an express provision of the Constitution, caiinot fall wifhin thc expression Except as expressty provided by this Constitutk)n" occurring in Ardcle 310 (3.) and would be in confljct wifh Ardcle 310 (1) and must bc held to be uaconstitutional. Clauscs (l) and (2) of Artfcle 311 expressly restrict the inanner in which a Goverojaent servant can be dismissed, removed or reduced ui iscak (IAIR 1985 SC 1416) ^-•-'" aad unless an Act made or rule fiamed under Article 309 also conforms to fhese restrictions, it woidd be void. The restrictious placed by clauses (l) and (2) of Ardcle 311 are two : (1) with respect to the authority einpowered to disauss or reiaoive a Goveminent servaat provided for in clause (1) ofArticle 311; aad (2) with respect to fhe procedure for disinissal, reinoval or reduction in raak of a goverauaent servant provided for in clause (2). The second proviso to Article 311(2), which te the ccntral point of controversy in these Appeals and Writ Petitious, Ufts fhe restrictiou imposed by Ardcle 3ll(2) in fhe»cases specified in fhe three clauses of that provBO, 61. The laoguage ofthe second proviso is plain and unainbiguous. The keywords in the second proviso are "this clause shafl not apply^. By "this clause" is meant clause (2). As clause (2) requires an. enquuy to be held against a govemment servaat, fhe only ineaning attnbutable to these words is that this inquiry shatl not be held. There is no scope for any ambiguity in fhese words and there is no reason to give fhem any ineaniug different fix>in the plain and ordinaiy ineaitmg which they bear. The resultant efFect of thcse words is that when a situation envisaged ia any of fhe three clauses of the proviso arises and fhat clause becoiacs appUcable, fhe safeguard provided to a goveraiuent servant by clause (2) is taken away. As pointed out earlier, ffais provision is as much in pubUc naterest and for public good aud a matter of pubUc policy as the pleasure doctrme and fhe safeguards wifh respect to secunty of tenure contauied ia clauses (1) and (2) of ArticleSll. 62. Before, however, aay clause of the second proviso can coine into play the condition laid down in it must be satisfied. The condition for the application of each of these clauses is different. In the case of clause (a) a govenunent servant must be guilty of coaduct deserffiag fhe penally ofdismissal, reinoval or reduction ia rank wtuch conduct has led to him benig convicted on a cnmiaal char^e. In fhc case ofclause (b) the disciplmaiy aufhorily inust be satisfied that it is not reasonabty piacticable to hold an inquuy. In ^s 15. the case of clause (c) the President or the Govemor of a Stafe, as the case inay be, m.ust be satisfied that ia fhe interest of the security of the State, it is uot expedient to hold an inquuy. When these conditions caa be said to be fdIGBed wiU be discussed later whHe dealing separately wifh each of the fhree clauses. The paramount thiag, however, to bear in inind is that the second proviso wffl apply onty wherc the conduct of a govenuuent servaat is such as he deserves fhe pnmshmcnt of dismissal, renioval or reduction ui raak, If the conduct is such as to deserve a punishmeat dififerent fioin those menticijied above, the secoad proviso caunot coine into play at aU, because Ardcle 311 (2) is itseU" confined only to fhese three penalties. Therefore, before denying a govenuaent servant his constitutional right to an inqiiuy, fhe first consideration woiild bc whether the conduct of the concemed goveniment servaat is such as justifies the penalty of dismissal, reiaoval or reduction in ranlc. Once that conclusion is reached and the condition speci&ed in fhe relevant clause of fhe second proviso is satisfied, that provteo becomes appUcable aad fhe govenunent servant is not entitled to an uiqiiixy. The extent to which a govenunent servant caa be denied his r^ht to an iaquiry formed the subject-matter of considerable debate at the Bar and we, therefore, noiw tum to the question whether under the second proviso to Article 311 (2) even though the inquiry is dispensed with, soine opportunity at least should not be afforded to the govenunent servant so that he is not lefltwhoBy wifhout protection. As most ofthe aiyiments on this part ofthe case were common to aU the three clauses of the second proviso, it wiU be convenient at this stage to deal at one place wifh aU the aiyiments on this part of fhe case, lcaving aside to be separately dealt with the other, arguments pertaming only to a particular clause of the second proviso. The Extent ofDenial ofOpportuaily under the second proviso". In Para-102 fhe Supreme Court further held as under :- "102 ...........Thus, where fhe second proviso appUes, though there is no prior opporfauuty to a goveminent servaat to defend himself agajnst the charges inade against him, he has the opportunity to show in an appeal jEUed by him that the charges made against him 10 ^gf :'^i are not true. This would be a suf&cient compliance witti the reqiiirements of natural justice......" 16. The Supreme Court has considered earlier decisions in. fhe case of ShasSs.str Dass Vs. Umon of India (1985) 2 SCC 358 and The Divisional Personnel OfBcer, Soufhera Railway and others Vs. T. R, ChaUappan (AIR 1975 SC 2216) and has held in para 128 as under:- "128. The niain fhrust ofthe ai^uments as regards clause (b) offhe second proviso to Article 311 (2) was that whatever fhe situation may be a minimal iaquuy or at least an opportunity to show cause against fhe proposed penalty is always feasible a&d is required by law. The arguinents wifh respect to a minimal inquiiy were founded on fhe basis of the applicabilily of Article 14 and (he priaciples of natural justice aad ftie arguinents wifh respect to an opportunity to show cause agatnst the proposed penally were in addition founded upon fhe decision in Challappau's Case {AIR 1975 SC 2216). These contentions have already been dealt wifh and negatived by us and we have further held that ChaUappan's Case in. so far as it held fhat a govemment servant shoiild be. heard before imposing a penalty upon himwas wrongly decided. 17. The Supreme Court in Trikha Ram Vs. V. K. Seth aad another2 held fhat in view of the decision of the five Judges Bench of the Supreme Court in Union of India Vs. Tiilsiram Patel { 1985 3 SCC 398} a civU servant convicted for crJTninal offence is not entitled to heanug before iinposiiig puaishinent ofdismissal. 18. The Supreme Court in the State of Maharashtea and another Vs. The Jal^oa Mualclpal CouacU aad others3 held that the basic principle ofnatural justice is to be inoulded in fheir application to suit peculiar situation of a given case, for fhe variely and complexion of fhe situation defies narration: The Supreme Court ia para 32 held as unden- < 21987 (Supp) SCC 39, ^AIR 2003 SC 1659) 11 >s "32. The caution of associating rulcs of natural justice with the flavour of flexibilities woiild not pennit fhe Courts applying dififerent standards of procedural justice in difierent cases depcnduig on the whiias or personal philosophy of fhe decision maker. The basic principles reinaui the saaie; they are to be luoulded in their appKcation to suit fhc pecuUar situations of a given case, for fhe variely aad coiuplexity of situations defies narration. That is QexibiUty. Socae of fhe relevaat factors which enter fhe judicial process of fhinkiug for determimng the extent of inoulding the nature aad scope of fair hearmg aad niay reach to the extent of right to hearfng being excluded are: (^ the nature of ftie subject-niatter, and (ii) exceptioxial situations. Such exceptionality inay be speUed out by (i) need to take urgent action for safeguarduig public health or safety or public iuterest, (ii) fhe absence of legitunate exceptfons, (iii) by refusal of reinedies in discretion, (w) doctrine ofpleasure such as fhe power to disiniss an einployee at pleasure, (v) express legislation. There is also a situation which Prof. Wade and Forsyth tenns as "dubious doctrine" that right to a fair hearing may stand excluded where the Court forms an opinion that a hearing woiild make no difFerence. Utter caution is needed before bringuig fhe last exception uito pIay.(Admuiisteative Law, ibid, at pp. 543-544). The Supreme Court ia Caltex (India) Ltd. Calcutta Vs. Presidiag OfHcer, Labonr Court, Pataa & others* iu para-5 has held as under:- "5. ........It is weU known that ia industrial law there are two kiads of misconduct, namety, (i) major inisconducts which justify puiushinent of disnussal/dischai^e, aad (i^ miaor inisconducts which do not justrfy punishinent of disinissal/dischai^e but niay caU for lesser puiushinents. Therefore, when the legislature indicated that fhe State Govemment wiU prescnbe fhe kinds of nusconduct on proof of which no notice wiB be required and services of a& einployee can be dispensed wifh it was clearfy mdicating to fhe Statc Goverrunent to include in its list of misconducts such of them as are generaUy uxiderstood as major (<AIR 1966 SC 1729) 12 stSisssvSS •"-'-s-iasa W'; ?|:SE|.:si4;^ misconducts which justijy the dismissal/dischai^e ofan employee. This in our opinion is sufficient guidaace to the State Govenunent to specify in the rule it was expected to inake such inisconduct as is generaUy zinderstood m uidustrial law tp call for the puaislunent of discharge/dismissal....... 20. Learned counsel for the petitioner has reMed on a decision of the Supreine Court iu Pawan Kumar Vs. State of Haryana and aaother8 wherein fhe deUnquent employee was convicted under section 294 of the I.P.C. fhe Supreme Court considermg the particular facts of the case held that the offence under sectk>n 294 ofthe I.P.C. is not found enlisted in the ofiFence constituting moral turpitude, and as such, the appeal was allowed and fhe order of tennination was set aside. In the present case fhe charge for committing an offence under Section 294 offhe I.P.C. against fhe petitioner was dropped and the petitioner was convicted for a conduct under Section 3 (1) (x) offhe Act, 1989. Thus in the facts of the case fhe decision of fhe Supreine Court ui Pawan Knmar's case (Supia) is not applicabfc. 21. The Supreme Court has recently considered second proviso to Articte 311(2) ofttie Constitution in fhe case ofUaion oflndia Ss others Vs. 8anU Kumar Sarka»6whereiu Rule 19 of fh.e Central Civfl Services (Classi&cation and Control and Appeal) Riiles 1965 was in question, has held in para-8 as under:- "8. ............The veiy foundation of unposing punishinent under Rule 19 is that fhere should be a prior conviction on a cruninal chai^e. Therefore, the question of having a pre-deteniuned iniad does not arise in such cases. AU fhat a discipUnaiy aufhority is expected to do under Riile 19 is to be satisfied that fhe officer concemed has been convicted of a crimmal charge and has been givcn a show cause notice. and reply to such show cause notice, if (SAIR 1996 SC 3300, 6AIR 2001