CIVIL WRIT PETITION NO.1009 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: DECEMBER 14 ,2010 Narinder Sharma ..... Petitioner VERSUS State of Haryana and others .... Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Amit Jain, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Yet again, an issue of dismissal of an employee on the basis of his conviction for a criminal charge, which is stayed, arises in the present case. Recently, this Court has considered the issue in detail and has held that stay of conviction would not effect the power and jurisdiction of the employer for dismissing an employee, on the ground of conviction which is stayed. The petitioner was enrolled as Constable in the year 2007. As per the petitioner, on account of enmity between his family and that of one Chander Bhan, one member of the petitioner's family was murdered by the complainant party. As a counter blast to the CIVIL WRIT PETITION NO.1009 OF 2010 :{ 2 }: same, the complainant lodged an FIR against the petitioner and his family members. The petitioner states that he though was juvenile but still was roped in falsely in this case. Additional Sessions Judge, Bhiwani, vide his order dated 29.11.2008, convicted the petitioner and some other family members for offences under Sections 323, 324 and 325 read with Sections 148 and 149 IPC and sentenced the petitioner to undergo rigorous imprisonment for 2 years. The petitioner filed an appeal against his conviction. The petitioner also prayed for staying his conviction as only simple injuries were attributed to him. This Court passed an order suspending the conviction of the petitioner on 24.7.2009. While staying the conviction, this Court observed as under:- “This is an application for staying the conviction of applicant-appellant No.3 Narender son of Chhabil Dass during the pendency of the appeal. It is submitted that offence does not involve moral turpitude. It is a case of cross version. It is further contended that Ami Chand, from the side of applicant- appellant No.3 party, had been murdered by complainant against the applicant-appellant No.3. It is further contended that simple injuries have been attributed to the applicant-appellant No.3 and grievous injury is on the non-vital of co-accused Bijender. So, taking into account the totality of the circumstances of the case conviction of the applicant-appellant No.3 namely Narender son of Chhabil Dass stands suspended CIVIL WRIT PETITION NO.1009 OF 2010 :{ 3 }: during the pendency of the appeal.” Deputy Commissioner of Police, Head Quarter Gurgaon, still passed an order dated 14.5.2009, dismissing the petitioner on the basis of his conviction. The appeal filed by the petitioner against the order of his dismissal was also dismissed on 27.11.2009. The petitioner had, in fact, approached this Court by filing CWP No.16494 of 2009, which was disposed on 29.10.2009 with a direction to the respondents to decide the appeal within a period of three months from the date of receipt of copy of the order. The petitioner had relied upon various authoritative pronouncements in his appeal but the Commissioner had still dismissed the appeal. The petitioner has, thus, filed the present petition. The issue whether the person can be dismissed from service on ground of his conviction, which has been stayed is no more res-integra. This issue, as already noticed, was considered in detail by this Court in CWP No.19987 of 2009 (Des Raj Vs. State of Haryana and others), decided on 15.11.2010. Reference was made to number of judgments i.e. Deputy Director of Collegiate Edu. (Admn.), Madras Vs. S.Nagoor Meera, AIR 1995 (SC) 1364, Tehal Singh Vs. D.H.B.V.N.L. & others, 2007(5) SLR 294, R.P.Sharma Vs. Municipal Corporation of Delhi, 2000 (4) SCT 438, Dharam Pal Vs. R.S.Malik, 2002 (4) SCT 313, Shankardass Vs. Union of India, 1985 (2) SCR 358, Rameshwar Dutt Sharma Vs. Lt.Governor, Delhi and another, AIR 1992 (1) CAT 460 and Baleshwar Singh Vs. District Magistrate and Collector, Banaras, AIR 1959 Allahabad 71 to observe that services of an employee can CIVIL WRIT PETITION NO.1009 OF 2010 :{ 4 }: be terminated on the ground of conduct, resulting into his conviction in a criminal charge and dismissal, removal or reduction in rank of the Government servant convicted by a criminal court is not barred merely because sentence or order is suspended by the appellate Court. As has been observed in Union of India Vs. V.K.Bhaskar, JT 1998 (9) SC 301, if such an employee is acquitted in appeal, matter can then be reviewed. In Deputy Director of Collegiate Education (Admn.) Vs. S.Nagoor Meera, 1995 (3) SCC 377, it is held that the relevant clause speaks of conduct which has led to his conviction on a criminal charge. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. The counsel for the petitioner did not seriously join issues in this regard. He, however, would refer to Hari Ram Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. And another, 2006 (2) RSJ 327 and Full Bench Decision of this Court in Om Parkash Vs. Director, Postal Services (Posts and Telegraphs Deptt.), Punjab Circle, Ambala and others, AIR 1973 Punjab and Haryana 1, to urge that the departmental punishment of removal or dismissal from Government service is not an essential and automatic consequence of conviction on a criminal charge. It is observed that liability to the departmental punished for a conduct, which has led to conviction of an employee, does not attach to the conviction but attaches to the original conduct/misconduct, which constituted the offence. The dismissal or removal or compulsory retirement could, thus, be made CIVIL WRIT PETITION NO.1009 OF 2010 :{ 5 }: if the competent authority finds that the relevant misconduct of the government servant renders his further retention in public service undesirable. Some observations in this regard were also made in the case of Union of India and another Vs. Tulsi Ram Patel, AIR 1985 Supreme Court 1416, which are as under:- “..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 penalty and, if so, what that penalty should be. For that purpose, it will have to peruse the judgment of 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, 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.” In Man Singh Vs. State of Haryana and others, 2010 (1) SCT 604, this Court has viewed that dismissal from service upon CIVIL WRIT PETITION NO.1009 OF 2010 :{ 6 }: conviction of an employee in a criminal charge is not automatic. Punishing authority is to apply its mind and to reach a definite conclusion that due to conviction, it is no more desirable to retain an employee. It is observed that dismissal straightway can not be sustained. (See Hari Ram's case (supra). Counsel for the petitioner has placed reliance on the ratio of law laid down in Man Singh's case (supra). As per the counsel, the petitioner has been convicted for offences which are not involving moral turpitude. The submission, therefore, is that punishing authority did not apply its mind before passing the order of dismissal and simply ordered so without exercising its mind if it was fair, just and reasonable to do so. Reference can also be made to The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan, (1976) 3 SCC 190, Rajinder Singh Vs. Board of School Education Haryana and another, 1996(4) RSJ 417 and Kulwant Singh Vs. The Deputy District Primary Education Officer, Gurdaspur, 1997 (1) SCT 282. In T.R.Chellappan's case (supra) it is observed that punishing authority must consider as to what penalty, if at all, should be imposed on the delinquent employee in view of his conviction. It is then observed that 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. In V.K.Bhaskar's case (supra), it is noticed that it should always be determined after reading the order whether it is passed only on the basis of conviction of an employee or after CIVIL WRIT PETITION NO.1009 OF 2010 :{ 7 }: considering the nature of conduct. A Division Bench of this Court in Rajinder Singh's case (supra) made very pertinent observation to the effect 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 may choose to impose a comparatively lesser punishment. As per the Division Bench, this has to depend on the objective application of mind by the employer to the facts of the given case. Apparently, these observations were made in a case where the conviction simplicitor was made the basis of dismissal of the employee from the service. The court did not find anything on record to indicate that respondents had considered the conduct of the petitioner therein which led to his conviction. Somewhat similar view has been taken in the case of Hari Ram (supra) by holding that there can be no automatic dismissal from service merely on conviction and it is obligatory upon the competent authority to apply its mind to the judgment of the criminal court and other material to reach a definite conclusion that it would not be desirable to retain an employee in service on account of his conviction. In Kulwant Singh's case (supra), the dismissal order was set-aside as it was passed on the basis of a conviction for offences under Sections 326, 324, 34 IPC by holding that offences were not involving moral turpitude. It can, thus, be stated that requirement of law was not fully kept in view while directing dismissal of the petitioner from service due to his conviction. The case, therefore, may have to go back to the competent authority for reconsideration in the light of the legal position noted above. The case is remitted back to the CIVIL WRIT PETITION NO.1009 OF 2010 :{ 8 }: respondents to reconsider the same in the light of law as noticed and to pass a fresh order in accordance with law. For this exercise, the petitioner need not be reinstated and the necessary consequence would follow, depending upon the final order passed by the competent authority. The writ petition is accordingly disposed of. December 14, 2010 (RANJIT SINGH ) khurmi JUDGE