L.P.A. No.204 of 2007 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.204 of 2007 Date of decision: October 4, 2008. Vashampine alias Kunni ...Appellant(s) v. State of Haryan & Ors. ...Respondent(s) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Ashish Aggarwal, Advocate for the Appellant(s). Shri Rameshwar Malik, Additional Advocate General, Haryana for the respondent(s). ORDER Surya Kant, J. - This Appeal is directed against the judgment dated 24.1.2007 passed by a learned Single Judge of this Court whereby C.W.P. No.573 of 1994 filed by the appellant, challenging the order of his dismissal from service dated 31.12.1993, has been dismissed. [2]. The appellant joined as a Time Clerk on 23.3.1977 on work charge basis in the Mechanical Division, JLN Canal Circle, Irrigation Department at Narnaul. He was thereafter appointed as a Supervisor with L.P.A. No.204 of 2007 -: 2 :- effect from 1.1.1978. His services were regularized and he continued to hold the aforesaid post till he was dismissed from service on 31.12.1993 for the reason stated hereinafter. [3]. FIR No.176 dated 30.5.1989 under Section 326 IPC was registered against the appellant at Police Station Civil Lines, Rohtak. As per the allegations, about two and half years before the occurrence, the appellant, while under the influence of liquor, was beaten up by one Krishan Kumar. On 29.5.1989, the appellant hit the said Krishan Kumar with a ‘Kauncha’ (an instrument made of iron blade fixed on a wooden handle used by sweet makers) on the right side of his face and broke a tooth . The injury was declared grievous in nature attracting Section 326 IPC. The Additional Sessions Judge, Rohtak vide judgment and order dated 18/21 March, 1992 convicted the appellant and sentenced him to undergo RI for a period of five years, besides a fine of Rs.5,000/-. [4]. The appellant challenged his conviction in Crl. Appeal No.128- SB of 1992. A learned Single Judge of this Court vide judgment dated 12.1.2004, upheld the conviction but reduced the sentence period to the extent of the period already undergone by the appellant after observing that, “In the case in hand, it is apparent from the records that the appellant came to the spot empty handed. He picked up the weapon of offence, i.e., an instrument which is used for preparation of sweets etc., from the adjoining shop and gave only one blow to the injured – complainant. This Court feels that may be the scuffle had taken place on a spur of moment. As per the doctor, injury had resulted into fracture of tooth. The appellant made no attempt to repeat the assault”. During the pendency of the appeal, the appellant's sentence was suspended on 8.5.1992 and he was released on bail. L.P.A. No.204 of 2007 -: 3 :- In this manner, the appellant underwent the actual sentence of four months and seven days. [5]. It appears that during the pendency of the Criminal Appeal in which the appellant’s sentence had been suspended by this Court, he was placed under suspension on 22.6.1992, followed by his dismissal from service vide an order dated 31.12.1993 (Annexure P-2), the relevant part of which reads as follows:- “I have perused the above judgment and order of learned Additional Sessions Judge, Rohtak and I am of the view that it is a gravest act of misconduct, which lead Shri Vashyam Payam Sharma to prosecution of aforesaid case in which he has been held guilty and sentenced as detailed above, which as rendered him a incorrigible to be retained in service. Mainly, the fact that he has preferred an appeal before the Hon'ble High Court, which is yet pending adjudication does not make any difference. In view of authoritative pronouncement of Hon'ble Division Bench of Punjab & Haryana High Court in case Jarnail Singh Vs. State of Punjab and another reported in 1980 Vol. III S.L.R.173, I avail the provision contained in proviso (a) to clause (2) of Article 311 of the Constitution of India and order that the service of Shri Vashyam Payam Sharma, worked charged regular Supervisor is hereby dismissed with immediate effect on account of his conviction in a criminal case detailed heretoabove.” [6]. The appellant’s challenge to the dismissal order has been turned L.P.A. No.204 of 2007 -: 4 :- down by the learned Single Judge after observing that in view of proviso (a) to Clause (2) of Article 311 of the Constitution, a person can be removed from service on the ground of conduct which led to his conviction on a charge and since the appellant was a convict under Section 326 IPC, the respondents were well within their right to dismiss him from service. [7]. We have heard learned Counsel for the parties at some length and carefully perused the record. [8]. It goes without saying that the protection under Article 311(2) of the Constitution against ‘dismissal’, ‘removal’ or ‘reduction in rank’, unless a reasonable opportunity of being heard is given, would not be available if such a punitive action is taken on the basis of conduct which has led to the conviction on a criminal charge. In other words, if an order of dismissal or removal from service is founded upon misconduct leading to the conviction of a civil servant on a criminal charge, there is no need for any further hearing before taking action in the matter. [9]. Explaining the scope of the provisions referred to above, the Supreme Court in Union of India v. Tulsi Ram Patel, 1985(3) SCC 398, held that the charge in the criminal case must relate to a misconduct of such magnitude as would have deserved the penalty of dismissal, removal or reduction in rank and if the conduct is such as deserves a lesser punishment, the second proviso cannot come into play at all for the reason that Article 311(2) itself is confined to those three penalties only. Their Lordships further held that proviso (a) is merely an enabling provision and does not enjoin the disciplinary authority to impose the punishment of dismissal from service in every case of trivial or technical offence. [10]. In The Divisional Personnel Officer, Southern Railway v. L.P.A. No.204 of 2007 -: 5 :- T.R. Chellappan, (1976)3 SCC 190, the Supreme Court held that the punishing authority must consider as to what penalty, if at all, should be imposed on the delinquent employee in view of the conviction. While considering the matter, the punishing authority will have to take into account the entire conduct of the employee, namely, the gravity of the misconduct and the impact the same is likely to have on the administration. [11]. In Union of India v. V.K. Bhaskar, (1997)11 SCC 383, the Apex Court observed that the question as to whether the order of dismissal was passed after considering the nature of the conduct, leading to his conviction on criminal charge, or was passed only on the basis of conviction of the employee, should always be determined after reading the order of dismissal. [12]. It may be mentioned here that the Haryana Civil Services (Punishment & Appeals) Rules, 1987 (in short the 1987 Rules) have been framed in exercise of powers conferred by the Proviso to Article 309 and Clause (b) of Article 318 read with Clause (3) of Article 187 of the Constitution of India. These rules lay down the procedure for imposing minor or major penalties on a government employee held guilty of some misconduct, as also the right to appeal, etc. Rule 7(1) of the 1987 Rules prohibits imposition of a major penalty against an employee unless he has been given reasonable opportunity of showing cause against the action proposed to be taken. Sub-rule (2) of Rule 7 prescribes the procedure to be followed in such cases. However, proviso (b) thereto carves out an exception and dispenses with the applicability of the foregoing sub-rule “where any major penalty is proposed to be imposed upon a person on the ground of conduct which has led to his conviction on a criminal L.P.A. No.204 of 2007 -: 6 :- charge...”. [13]. It may, thus, be seen that proviso (b) to rule 7(2) of the 1987 Rules has been couched with the same expression as contained in proviso (a) to Article 311 (2) of the Constitution. [14]. A pari-materia provision, namely, Rule 18 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 providing dispensation of inquiry in a case “where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge...”, came up for consideration before a Full Bench of this Court in the case of Om Parkash v. Director, Postal Services (Post & Telegraphic Department), AIR 1973 P&H 1. After observing that the above quoted rule enables imposition of penalty on a government servant not for his having been ‘convicted’ on a criminal charge but for the misconduct which has led to his such ‘conviction’, the Full Bench ruled as follows:- “(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 criminal charge has to 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 L.P.A. No.204 of 2007 -: 7 :- conduct of the official is not such which renders his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him; (emphasis applied) (ii) to (xiii) xxx xxxx xxxx xxx xxxx” [15]. Following the Full Bench decision in Om Parkash's case (supra), a Division Bench of this Court in Rajinder Singh v. Board of School Education Haryana and another, 1996(4) RSJ 417 further enlarged the scope of justiciability in such like cases and held that:- “11. In addition to what the Full Bench has held, we may observe that in cases involving moral turpitude, the employer may be justified in taking the view that the employee has lost his right to remain in service but in such cases the employer may choose to impose a comparatively lesser punishment. However, that will depend on an objective application of mind by the employer to the facts of a given case. What has happened in this case is that the conviction simplicitor has been made basis for dismissing the petitioner from service. There is nothing on the record to show that respondent No.1 considered the conduct of the petitioner, which led to his conviction. There is also nothing on the record to show that the employer applied its mind to the service record of the petitioner and the nature of the crime committed by him with particular reference of its impact on the service of the petitioner. Thus, the present one is a clear case of non- application of mind and, therefore, on this ground alone, the L.P.A. No.204 of 2007 -: 8 :- impugned order is liable to be quashed.” [16]. In Kulwant Singh v. The Deputy District Primary Education Officer, Gurdaspur, 1997(1) SCT 282, a learned Single Judge of this Court took notice of the fact that in the Criminal Revision preferred by the convict – a JBT teacher, the offence under Section 326/324/34 IPC committed by him was held not to be involving ‘moral turpitude’, set aside the order of dismissal based upon conviction of that employee. [17]. In yet another decision in Hari Ram v. Dakshin Haryana Bijli Vitaran Nigam Ltd. And another, 2006(2) SCT 112, a Division Bench of this Court held that there can be no automatic dismissal from service merely on conviction in a criminal case and it is obligatory upon the competent authority to apply its mind to the judgment of the criminal court and other material on record and reach at a definite conclusion that due to the conviction, it is no more desirable to retain the employee in service. [18]. The stage is now ripe to refer to the Policy Circular dated 17/26 March, 1976 issued by the Govt. of Haryana for ‘rehabilitation of ex- convicts released from jail; question of making them eligible for appointment under government’. After due deliberations the Govt. took a decision that those ex-convicts who were not convicted of offences involving “moral turpitude” can be rehabilitated in Government service if the appointing authority, after making detailed inquiries is satisfied that there was nothing adverse against their conduct while in jail. Along with the policy circular, a list of offences involving ‘moral turpitude’ had also been enclosed. Suffice it to say that the offence under section 326 IPC does not find a mention in that list. [19]. We now advert to the impugned dismissal order passed against L.P.A. No.204 of 2007 -: 9 :- the appellant. As may be noticed, the appointing authority, after perusing the judgment passed by the learned Additional Sessions Judge, formed the view that it is the gravest act of misconduct which rendered the appellant “incorrigible” for retention in service. The appointing authority thereafter referred to a Division Bench decision of this Court which lays down that even when an appeal against conviction is pending, the competent authority is not precluded from taking action under proviso (a) to clause (2) of Article 311 of the Constitution. [20]. Having scrutinized the contents of the subject dismissal order on the touchstone of the principles laid down by the Full Bench in Om Parkash's case (supra) or a Co-ordinate Bench in Rajinder Singh's case (supra), we are afraid that the same cannot sustain in law. We fail to understand as to how an offence committed with a single blow caused with an unconventional weapon, could be termed as “gravest act of misconduct”. It was a private dispute which led the appellant to inflict an injury in the spur of a moment. The offence was committed at a time when the appellant was off-duty. Further, this is the solitary mis-adventurous act brought on record by the respondents against the appellant. We cannot appreciate as to how such an isolated misconduct was suffice to hold the appellant an “incorrigible” employee. The expression “incorrigible” connotes a definite meaning like someone being habitual or repetitive in his misdemeanors. [21]. The impugned dismissal order is blissfully silent over the 17 years of service which the appellant had to his credit nor is there even a passing reference to his service record. We are unable to fathom as to why a lesser punishment like the compulsory retirement from service and/or the stoppage of increments with cumulative effect would have proved to be L.P.A. No.204 of 2007 -: 10 :- inadequate. The impugned dismissal order, thus, miserably fails to satisfy the pre-requisites of a valid order as laid down by their Lordships of the Supreme Court as well as this Court in a plethora of cases, cited above, and is accordingly quashed. [22]. In our considered view, the learned Single Judge also fell in error in holding that the respondents were competent to dismiss or remove the appellant from service on the basis of his conduct which led to his conviction in a criminal charge. As noticed earlier, the power under proviso (a) to Clause (2) of Article 311 of the Constitution is not an unbridled power and can be exercised only within the well defined legal parameters. [23]. This, however, cannot be construed to mean that the appellant is entitled to be reinstated in service as a matter of right or should be allowed to go absolutely scot-free, more so when traces of a misconduct, though might not be grave in nature, are visibly proved against him. Faced with this situation, learned Counsel for the appellant has placed on record an affidavit dated 19.9.2008 sworn by the appellant to the effect that “he is ready and willing to forego his arrears of salary which will accrue to him from the date of his dismissal from service, till date, in case he is awarded a punishment lesser than dismissal by the punishing authority.” [24]. In our considered view, the punishment of dismissal imposed by the punishing authority is manifestly disproportionate to the nature of misconduct committed by the appellant. It is, however, for the punishing authority alone to decide and impose some lesser and adequate punishment after taking into consideration all the relevant factors and attending circumstances. The punishing authority shall, therefore, pass an appropriate order within a period of three months from the date a certified copy of this L.P.A. No.204 of 2007 -: 11 :- order is received. [25]. For the reasons afore-stated, we accept this appeal; set aside the judgment under appeal dated 24.1.2007 passed by the learned Single Judge and while allowing the writ petition, quash the order of dismissal dated 31.12.1993 and remit the matter back to the punishing authority – respondent No.2 to pass an appropriate order in accordance with law and in the light of the observations made herein-above. [26]. We further direct that in view of the undertaking given by the appellant before this Court, in the event of imposition of any lesser punishment, he shall not be entitled to claim the arrears of salary though the entire period might count for the purpose of retiral and other service benefits. [27]. There shall be no order as to costs. [ Surya Kant ] Judge October 4, 2008. [T.S. Thakur] kadyan Chief Justice