INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 1 INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) Dated :- 2.3.2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr.M.Mridul, Senior Advocate assisted by Miss Vandana, for the appellant. 1. This special appeal is directed against order dated 28.11.08 passed by the learned Single Judge of this court , whereby the writ petition preferred by the appellant assailing the validity of order dated 13.9.06 passed by the disciplinary authority dismissing him from service, has been dismissed. 2. The appellant employed as Teacher Gr.III was placed under suspension vide order dated 12.9.73 passed by the Vikas Adhikari, Panchayat Samiti, Sarada on the ground that he was arrested for involvement in a murder case. The appellant was convicted and sentenced to imprisonment for life for the offences u/ss. 302/149 IPC by the Additional Sessions Judge vide judgment dated 22.2.78. That apart, the appellant was also sentenced to undergo rigorous imprisonment for three months for offence u/s. 148 IPC. On appeal against the said judgment, a Bench of this Court affirmed the conviction of the appellant u/s 148 IPC and the punishment awarded, however, his conviction u/s. 302/149 IPC was set aside vide order dated 6.4.98. INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 2 3. Thereafter, the appellant preferred an application dated 1.8.98 before the Vikas Adhikari, Panchayat Samiti, Sarada for revocation of his suspension and to reinstate him in service. It is submitted that on the representation made by the appellant, no action was taken by the authorities concerned therefore, the appellant preferred a writ petition No.3396/03 which was later dismissed as withdrawn with liberty to file a fresh vide order dated 1.12.06 passed by the learned Single Judge of this Court. 4. After dismissal of the writ petition of the appellant as aforesaid, vide order dated 13.9.06, the appellant was dismissed from service w.e.f. 10.9.73 on account of his conduct which led to his conviction on a criminal charge. The validity of the order of dismissal was assailed by the appellant by way of writ petition, which stands dismissed by the learned Single Judge by the order under appeal. 5. Precisely, the case of the appellant before the learned Single Judge was that the order of dismissal from service has been passed by the disciplinary authority on total misconception that the appellant was held guilty for offence of murder alongwith other accused. Relying upon a decision of the Hon'ble Supreme Court in the matter of “Ramraj Singh vs. State of M.P.”, 1990 (Supp.) SCC, 61, it was contended that for the conviction u/s. 148 IPC could not have affected his continuance INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 3 in employment in any manner because of minor role played by him in commission of the offence. It was contended that the conduct of the appellant involving himself in the commission of offence u/s 148 IPC does not constitute misconduct under the Rajasthan Conduct Rules, 1971. 6. After due consideration, the learned Single Judge has found that the appellant has been convicted and sentenced on a criminal charge and such conduct of the appellant is not disputable therefore, the penalty of dismissal from service imposed upon the appellant by the disciplinary authority clearly falls within Rule 19(1) and (2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958( in short “CCA Rules” hereinafter). After examining the material on record, the learned Single Judge opined that it cannot be said that the respondent authority imposing punishment of dismissal from service has not applied its mind. Accordingly, the writ petition has been dismissed. 7. It is contended by the learned counsel for the appellant that the learned Single Judge has not taken notice of the fact that the Division Bench has found that the appellant was present at the time of occurrence and it has nowhere been said that the appellant has participated in the murder of Madanlal. The learned counsel submitted that the disciplinary authority had INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 4 passed the order of dismissal on the assumption that the appellant was involved in the murder case ignoring the Division Bench judgment whereby, he was held guilty of offence u/s 148 IPC. Accordingly, it is submitted that the order passed by the disciplinary authority suffers from the non-application of mind. It is submitted by the learned counsel that the involvement of the appellant in commission of offence u/s 148 IPC cannot be said to be a conduct involving moral turpitude. Lastly, it is submitted by the learned counsel that the order impugned passed by the disciplinary authority is violative of Rule 19 of the CCA Rules inasmuch as, before passing the order, the Commission was not consulted. 8. We have considered the submissions of the learned counsel for the appellant , perused the impugned order and other material on record. 9. The controversy involved in this appeal revolves around Rule 19 of the CCA Rules therefore, it will be beneficial to produce the provision contained therein: “19 Special Procedure in Certain Cases.- Notwithstanding anything contained in rules 16, 17 and 18. (i)where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii)where the disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 5 (iii)where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as deems fit Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.” 10. A bare perusal of Rule 19 of the CCA Rules makes it abundantly clear that the provisions laid down in Rules 16, 17 and 18 of the CCA Rules for the disciplinary inquiry is not required to be followed inter alia in a case where a penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. Thus, the disciplinary authority is competent to straight away impose any punishment on the basis of the conduct which has led to such conviction. But then, on conviction of a person by the court of competent jurisdiction , the imposition of punishment is not automatic and the disciplinary authority is required to record a finding that the conduct of the government servant which led to his conviction requires imposition of such punishment. 11. Adverting to the facts of the present case, it is to be noticed that a Bench of this court while setting aside the conviction of the appellant u/s. 302/149 IPC and the consequential punishment has maintained his conviction and the punishment imposed . It will be appropriate to reproduce the INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 6 findings recorded by the Bench while convicting the appellant for offence u/s 148 IPC:- “The accused appellants have been convicted under section 148 IPC also. As regards this offence, it can be safely said that P.W. 2 Kishorilal and P.W. 12 Sohanlal Bhatnagar have deposed that accused appellants were armed and were part of the crowd which had used violence and in that violence Madan Lal was killed. Though the accused have not been convicted for causing any injury to Madan Lal, but then that does not mean that the crowd had not used violence. Since the accused appellants were part of that crowd and were armed, it can be said that they have committed the offence of rioting and, therefore, their conviction under section 148 IPC is maintained because to the extent of using violence the common object of all those who gathered and created unrest can be said to be on their head and behaviour. Therefore, on the strength of testimony of PW-2 Kishorilal and P.W. 12 Sohanlal Bhatnagar, the conviction of the accused appellants under section 148 IPC is maintained.” 12. A perusal of the order passed by the disciplinary authority goes to show that it has examined the findings recorded by the Bench of this court as aforesaid and categorically found that the crime committed by the appellant involve moral turpitude and therefore, it is not desirable to retain him in service. The submissions made by the appellant have also been duly considered by the disciplinary authority, therefore, it cannot be said that the order impugned passed by the disciplinary authority suffers from the vice of non application of mind. The learned counsel is not justified in contending that the order impugned has been passed with the assumption that the appellant has INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 7 been found guilty by the court for commission of an offence u/s 302 IPC. As a matter of fact, the order impugned is essentially based on the conduct of the appellant which led to his conviction u/s 148 IPC. 13. It is to be noticed that the Division Bench while convicting the appellant u/s 148 IPC has categorically observed that the accused appellant was armed and was part of the crowd which has used violence wherein Madanlal was killed. The Bench has observed that the appellant has not been convicted for causing any injury to Madanlal but then, that does not mean that the crowd had not used the violence. The conviction of inter alia the appellant u/s 148 IPC has been maintained with the categorical finding that to the extent of using violence and common object of all those who gathered and created an unrest can be said to be on their head and behavior. Thus, on the facts and in the circumstances of the case, we are of the considered opinion that the act of the appellant in remaining part of a crowd with arms using violence and creating unrest does constitute gross misconduct and for this reason, the order impugned passed by the disciplinary authority imposing punishment of dismissal from service cannot be faulted with. 14. Coming to the contention of the learned counsel that before passing the order the consultation with the Commission INAYAT KHAN VS. STATE OF RAJASTHAN & ORS. (D.B.CIVIL SPECIAL APPEAL NO.262/09) 8 has not been made, it is pertinent to note that there is absolutely no foundation in this regard either in the writ petition or in the special appeal. No such contention was ever raised on behalf of the appellant before the learned Single Judge and without there being any foundation of facts in this regard, the appellant cannot be permitted to raise the ground as aforesaid. Moreover, as per the proviso to Rule 19 , the Commission is required to be consulted before imposition of the penalty only in cases, where such consultation is necessary. The learned counsel for the appellant has not been able to demonstrate before us that on the facts and in the circumstances of the case, why the consultation with the Commission was necessary. Thus, in our opinion, the contention raised by the learned counsel for the appellant is absolutely devoid of any merit. 15. For the aforementioned reasons, we do not find any error in the order impugned passed by the learned Single Judge warranting interference by us in this intra court appeal. 16. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. ( A.M.KAPADIA),J. Aditya/-