1 W.P. 560/1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 560 OF 1999 Arjun S/o Malhari More Age : Major, Occ. : Khalashi MCH Shed, Loco-shed, Bhusawal (Now terminated ), R/o : Majare, Post : Hatole, Tq. : Chalisgaon, Dist. Jalgaon. .... PETITIONER VERSUS 1. Union of India Ministry of Railways New Delhi. 2. General Manager, Central Railway, Bombay – 1. 3. Divisional Personal Officer Central Railway, Bhusawal, Dist. Jalgaon. .... RESPONDENTS Mr. A.D.Sugdare, Advocate for petitioner. Mr. Manish Nawandar, Advocate for respondent no. 3. CORAM : B.R.GAVAI AND S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT : 05/ 07/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner takes exception to the order passed by the Central Administrative Tribunal, Bombay, Bench at Bombay dated 11/2/1994 passed 2 W.P. 560/1999 in Original Application No. 1292 of 1993. 2. The petitioner was working as Khalashi in the Railway department and he was a permanent employee. The petitioner was charged U/s 3 of the Railway Unlawful Property Act. He was tried by the Railway Magistrate. He was convicted and fine was imposed of Rs. 500/- ( Rupees Five Hundred only ) in default to suffer Rigorous Imprisonment for 2 months. The petitioner aggrieved by the said order, preferred Appeal before the Sessions Judge bearing Criminal Appeal No. 70 of 1984. The said Criminal Appeal also came to be dismissed by the Sessions Judge. The petitioner thereafter preferred Criminal Revision No. 20 of 1989 before this Court. This Court vide its order dated 21/1/1991 confirmed the conviction. However, instead of sentencing to pay fine, the petitioner was released U/s 48 of Probation of Offenders Act on probation of good conduct for the period of 2 years and on his executing personal Bond of Rs. 1,000/- (Rupees One Thousand only ) with solvent surety. 3. During the intervening period, the petitioner was dismissed from services. Against the said order of dismissal, the petitioner preferred Original Application before the Central Administrative Tribunal, Bombay, Bench at Bombay. The Tribunal dismissed the Original Application of the petitioner. Being aggrieved by the same, the petitioner has filed the present petition. 4. Mr. Sugdare, the learned counsel for the petitioner contended that - 3 W.P. 560/1999 (i) The petitioner has been released on probation and as such the disqualification attaching to conviction is removed. (ii) Even if it is held that the charge against the petitioner is proved, but still in view of the doctrine of proportionality, the order of dismissal is too harsh and he ought to have been reinstated in service and for the said purpose, relied on the Judgment in the case of State of M.P. & Oths. V/s Hazarilal reported in AIR 2008 – Supreme Court – 1300. He also relied on the Judgment of the Apex Court in the case of the Divisional Personnel Officer, Southern Railway and another V/s T.R. Chalappan reported in AIR 1975 – Supreme Court – 2216 and the Judgment in the case of Shankar Dass V/s Union of India and another reported in AIR 1985 – Supreme Court – 772 = 1985 Lab. I.C. - 590. (iii) The fact that the petitioner is convicted will not amount to automatic disqualification. The conviction of the delinquent employee simplicitor will not result in his automatic dismissal or removal from service. The respondents herein should have independently applied their mind to the allegations levelled against the petitioner. 5. Per contra, Mr. M.N. Navandar, the learned counsel for respondent no. 3 submitted that the conviction of the petitioner has been confirmed through out and it is proved beyond doubt that the petitioner has indulged in such activities. According to him, simply because the petitioner is released on probation, the same would not tantamount to acquittal, the stigma of conviction would still remain and the same can be taken into 4 W.P. 560/1999 account for removing him from service. For the said purpose, relied on the Judgment of the Apex Court in the case of Harichand V/s Director of School Education reported in AIR 1998 – Supreme Court – 788. He has further contended that if the petitioner is dismissed from service in view of conviction, subsequent release on probation of the petitioner will not give him any right to claim reinstatement and for the said purpose relied on the Judgment of the Apex Court in the case of Union of India and others V/s Bakshi Ram reported in AIR 1990 – Supreme Court – 987. 6. We have heard the respective counsels at length. It is not disputed that the petitioner is removed from service only on account of conviction and no independent departmental enquiry was conducted against the petitioner. The offence alleged against the petitioner was that he was found in possession of Brass cups of suspension of railway engine worth Rs. 150/-. 7. We would not embark upon the legality of the conviction of the petitioner as the same stands confirmed up to this Court. It also can not be a matter of debate that release of the petitioner on probation would not remove the stigma of conviction. Mr. Navandar has rightly contended in that regard. But the question before us is, simply because the petitioner has been convicted on the ground that he was found in possession of the railway property worth Rs. 150/- would ipso – facto entail his removal from service and whether punishment from removal of service is proportionate to the act alleged. 5 W.P. 560/1999 8. The Apex Court in the case of Divisional Personnel Officer, Southern Railway and another V/s T.R. Challapan referred supra, considering the relevant rules of the Railway Services ( Discipline and Appeal ) Rules, 1968 has observed thus : “ 9. In the instant case we are concerned only with Clause (i) of Rule 14 of the Rules of 1968 which runs thus : “ Notwithstanding anything contained in Rules 9 to 13 : (i) where any penalty is imposed on a railway servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit ”. It is also manifest that disqualification is essentially different in its connotation from the word misconduct. Disqualification can not be an automatic consequence of misconduct, unless the statute so requires. Proof of misconduct may or may not lead to disqualification, because this matter rests on the facts and circumstances of a particular case or the language in which the particular statute is covered. In the instant case neither Art. 311 (2) proviso (a) nor R. 14 (i) of the Rules of 1968 contain any express provision that the moment a person is found guilty of a misconduct on a criminal charge he will have to be automatically dismissed from service. Article 311 6 W.P. 560/1999 (2) proviso (a) is an enabling provision which merely dispenses with the various stages of the departmental inquiry and the show cause notice. Rule 14 despite incorporating the principle of proviso (a) to Article 311 (2) enjoins on the disciplinary authority to consider the circumstances of the case before passing any order. Thus, in our opinion, it is a fallacy to presume that the conviction of a delinquent employee simpliciter without anything more will result in his automatic dismissal or removal from service ”. 9. The Apex Court in the case of Shankar Dass referred supra has also held thus : “ 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 Cl. (a) of the second proviso to Art. 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 7 W.P. 560/1999 justly ”. 10. As such, the Apex Court has laid down that simply because a person was convicted, that would not entail automatic disqualification or removal from service. The respondent simply on the ground that petitioner is convicted, has removed the petitioner from the service. When the respondent is taking such a decision of removing an employee, it is expected that the employer applies its mind to all the relevant aspects and thereafter takes a conscious decision. In the present case, there is no application of mind on the part of the respondents before imposing the punishment of dismissal from service. The facts in the case of Divisional Personnel Officer, Southern Railway and another V/s T.R. Challapan referred supra are akin to the facts of the present case. 11. It is well settled position of law that Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. A useful reference can be had to the Judgment of Apex Court in case of State of M.P. V/s Hazarilal referred supra, wherein the Apex Court has observed that : “ 12. Furthermore the legal parameters of judicial review has undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. ( See : Indian Air-lines Ltd. Vs. Prabha D.Kumari - (2006) 11 SCC – 67, State of U.P. Vs. Sheo Shanker Lal Srivastava – (2006) 3 SCC – 276 and M.P. Gangadharan and another Vs.. State of Kerala and others - AIR 2006 SC – 2360.) 13. At this stage we may also notice the 8 W.P. 560/1999 application of the Doctrine by the United Kingdom House of Lords in Seal (FC) ( Appellat ) Vs. Chief Constable of South Wales Police (Respondent ) - (2007) 4 All ER 177, Huang (FC) (Respondent ) Vs. Secretary of State for the Home Department ( Appellant ) and Kashmiri (FC) (Appellant ) vs. Secretary of State of the Home Department ( Respondent ) (Conjoined Appeals ) - (2007) 4 All ER – 15, Tweed (Appellant ) vs. Parades Commission for Northern Ireland (Respondent ) (Northern Irland ) - (2007) 2 All ER 273, Belfast City Council (Appellants) vs. Miss Behavin Limited (Respondents) (Northern Ireland) (2007) 3 All ER – 1007 and R ( on the application of Countryside Alliance and others ) vs. Her Majesty’s Attorney General and another ( 2007) 3 WLR – 922. 14. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality. Lord Carswell in Tweed ( supra) after referring to previous decisions and authorities, observed : “ The starting point is that there is an over-lap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which i do not propose to discuss, a few 9 W.P. 560/1999 generalizations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in Rv. Ministry of Defence. Exp Smith ( 1996) QB 517.554 is not necessarily appropriate to the protection of human rights ”. 12. Taking into consideration the dictums of the Apex Court vis–a-vis the facts of the present case, it is clear that the respondent authorities have failed to apply their mind. The charge against the petitioner is that he was found in possession of Railway property worth Rs. 150/-. The manner in which he came in possession of the same, is not enquired. As no departmental enquiry was conducted, he did not have the opportunity to explain about the said charge. No opportunity was given to the petitioner to put-forth his say before he was removed from the service and the punishment of the removal from service is also dis-proportionate to the act complained. The principles of natural justice have been flauted. As such, we are inclined to set aside the order of termination, but as the petitioner has not served in the said period, we are not inclined to award any payment or any arrears of back wages to the petitioner on the principle of ‘ no work no pay ’. 10 W.P. 560/1999 More over, it has also not been brought on record that during the said period, he was jobless. On this count also, we are not inclined to grant any back wages. 13. In the light of above, we set aside the order of termination and pass the following order : (1) The petition is allowed. We hold that the order of termination dated 20/5/1983 is bad in law. However, we are not inclined to direct payment of any back wages or arrears to the petitioner. (2) It is directed that since the termination of the petitioner is set aside and he would be deemed to be continued in service till superannuation, pension on the said basis would be paid to him with prospective effect. The necessary action for making applicable the pensionary benefits be completed within a period of 60 ( sixty ) days from today. 14. Rule is made absolute on above terms. However, there shall be no order as to costs. [ S.V.GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 560.99 11 W.P. 560/1999