IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 1384 of 2001 Reserved on : 26.3.2008 Date of decision : 10.4.2008. Tej Deen …Petitioner. Versus H.R.T.C. and another …Respondents Coram The Hon’ble Mr. Deepak Gupta, J. The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1 yes. For the petitioner : Mr. Manohar Lal Sharma, Advocate. For the respondents : Mr. Ashok Sharma, Advocate. Per Rajiv Sharma, J. The present petition is directed against the order passed by the learned Tribunal in O.A. No. 1094 of 1991 on 17th August, 2001. The brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Driver in the respondent-Corporation on 19th November, 1984. His services were terminated by the respondent-Corporation on 31st January, 1987 under Rule 19.1 of the Central Civil Services (Classification Control and Appeal) Rules 1965. He filed original application before the learned Himachal Pradesh Administrative Tribunal bearing No. O.A. No. 1094 of 1991. The original application was dismissed by the Tribunal on 17th August, 2001. 1 Whether the reporters of Local Papers may be allowed to see the judgment? Mr. Manohar Lal Sharma, learned counsel for the petitioner had strenuously argued that the order passed by the learned Tribunal on 17th August, 2001 is not sustainable in the eyes of law. Shri Ashok Sharma, learned counsel for the respondents had supported the order dated 17th August, 2001. We have heard the learned counsel for the parties and perused the record carefully. It appears from the pleadings that the petitioner was convicted by the Sub Divisional Judicial Magistrate, Tehog on 26th December, 1984, under Sections 41 and 42 of the Indian Forest Act. The appeal preferred by him was rejected by the learned Sessions Judge. The criminal revision No. 103 of 1986 preferred by the petitioner was rejected by this Court on 3.10.1986. The judgement dated 3.10.1986 reads thus :- “3.10.1986 Present: Sh. D.D.Sood, Advocate for petitioner. Heard. I am satisfied that the petitioner was found carrying in his truck 15 scants of illicit wood without any transit permit authorisng the transport thereof. Hic conviction, therefore, is well founded and calls for no interference. In the matter of sentence also the same is not excessive so as to justify any interference. This revision petition is accordingly dismissed in limine. “ Petitioner preferred a Criminal Appeal No.654 of 1986 before the Hon’ble Supreme Court of India. The special leave was granted on the question of sentence only by the Hon’ble Supreme Court. The order dated 17th December, 1986 reads thus:- “Special leave granted limited to the question of sentence only. The sentence of imprisonment is reduced to a period of two months. The sentence of fine will remain. With this modification this appeal is disposed of.” The Superintendent of Police, Hamirpur, sent a communication to the Assistant Manager of the Corporation on 18th December, 1986 informing him that the petitioner was arrested in case F.I.R.No. 132 dated 29th September, 1990 under Sections 41 and 42 of the Indian Forest Act. The Superintendent of Police also sent a communication to the Divisional Manager on 15th January, 1987. The text of the same reads thus: “Reference this office memorandum No. 247 dated 3.1.1987 on the subject cited above. A copy of TMP No.19/5A dated 9.1.1987 received from SHO Police Station Theog, District Shimla regarding conviction of Tej Deen is sent herewith for further action at your end. Copy of TMP No.19/5A dated 9.1.1987 received from SHO, Police Station Theog addressed to S.P.Hamirpur. Kindly refer your WT/No.85112 dated 22.12.1986 and subsequent WT/No. 183 dated 2.1.1987. In this case it is submitted that of Shri Tej Deen convicted by Ld. S.D.J.M.Theog vide order dated 26.12.1984 and in execution of Jail Warrant dated 1.12.1986, and it is further added that vide its order dated 17.12.1986 the Hon’ble Supreme Court of India has reduced the period of four months from the total imprisonment i.e. 6 month please” In sequel to communication dated 18th December, 1986 and 15th Jaunary, 1987, the petitioner was removed from service under Rule 19.1 of the Central Civil Services (Classification Control and Appeal) Rules 1965 by the Divisional Manager, HRTC, Shimla. The text of the office order dated 31st January, 1987 reads thus: “Office Order. Whereas Shri Tej Deen, Driver, HRTC, Rohroo Sub Unit has been convicted on a criminal charge, to wit, under Section 41 -42 Indian Forest Act. And whereas it is considered that the conduct of the said Shri Tej Deen Driver which has led to his conviction is such as to render his further retention in the public service undesirable. Now, therefore, in exercise of the powers conferred by Rule 19(i) of the Central Civil Services (Classification Control and Appeal) Rules 1965 the undersigned hereby removes the said Shri Tej Deen, Driver from the service of Himachal Road Transport Corporation with immediate effect. By Order.” He preferred an appeal against the office order dated 31st January, 1987. The same was rejected by the Appellate Authority on 11th October, 1990. Mr. Manohar Lal Sharma, learned counsel for the petitioner submitted that the Tribunal has not appreciated the ratio of Union of India vs. Tulsiram Patel reported in AIR 1985 Supreme Court 1416 in the right perspective. He submits in nutshell that the learned Tribunal had only taken into consideration excerpts of para 114 but has omitted to take into consideration para 127 of the judgement. It will be apt at this stage to refer to para 127 of the Judgement, as reproduced below: “Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, 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 a penalty and, if so, what that penalty should be . For that purpose it will have to peruse the judgement of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan’s case (AIR 1975-SC 2216). This, however, has to be done by it ex parte and by itself. 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 concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate his question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court’s power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India (1985) 2 SCC 358: (AIR 1985 SC 772) this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case. “ It will also be pertinent to refer to the instructions issued by the department of personnel and training vide O.M.No. 11012/11/85-Estt.(A) dated 11th November, 1985 and 4th April, 1986 after the judgement pronounced by the Hon’ble Supreme Court on 11.7.1985 in Tulsiram Patel case supra. Para 4 (1) (a) to 3 of the instructions reads thus: “(4) Guiding principles for dispensing with enquiry in cases of conviction and other special circumstances.- (a) General: the judgement delivered by the Supreme Court on 11.7.1985, in the case of Tulsi Ram Patel and others has been the cause of much controversy. The apprehension caused by the judgement is mainly due to an inadequate appreciation of the points clarified in this judgement and in the subsequent judgement of the Supreme Court delivered on September 12, 1985, in the case of Satyavir Singh and others (Civil Appeal No. 242 of 1982 and Civil Appeal No. 576 of 1982). It is, therefore, imperative to clarify the issue for the benefit and guidance of all concerned. 2. In the first place, it may be understood that the Supreme Court in its judgement has not established any new principle of law. It has only clarified the constitutional provisions, as embodied in Article 311 (2) of the Constitution. In other words, the judgement does not take away the constitutional protection granted to Government employees by the said Article, under which no Government employee can be dismissed, removed or reduced in rank without an inquiry in which he has been informed of the charges against him and given a reasonable opportunity to defend himself. It is only in three exceptional situations listed in Clauses (a), (b) and (c) of the second proviso to Article 311 (2) that the requirement of holding such an inquiry may be dispensed with. 3. Even under these three exceptional circumstances, the judgement does not give unbridled power to the competent authority when it takes action under any of the three clauses in the second proviso to Article 311(2) of the Constitution or any service rule corresponding to it. The Competent Authority is expected to exercise its power under this proviso after due caution and considerable application of mind. The principles to be kept in view by the Competent Authority while taking action under the second proviso to Article 311 (2) or corresponding service rules have been defined by the Supreme Court itself. These are reproduced in the succeeding pargraphs for the information, guidance and compliance of all concerned. True it is that the disciplinary authority was not bound to issue any show cause notice to the petitioner under Rule 19 of the Central Civil Services (Classification Control and Appeal) Rules, 1965, before the imposition of penalty as per law. However, the Hon’ble Supreme Court of India in Tulsiram Patel case has categorically laid down that where a disciplinary authority comes to know that a Government servant has been convicted, it must consider whether his conduct which has led to his conviction warrants the imposition of penalty and if so what the penalty should be. To arrive at this finding the disciplinary authority has to peruse the judgement of the criminal Court and peruse all the facts and circumstances of the case. It is only after the disciplinary authority comes to the conclusion that the Government servant conduct was such as to require his removal from service the disciplinary authority must decide which of three penalties should be imposed on him. The disciplinary authority has to bear in mind that a conviction on a criminal charge does not automatically entail dismissal/removal or reduction in rank. Thereafter, the Government servant, if aggrieved by the penalty imposed can file an appeal or revision. In the present case, the Tribunal has also referred to finding that the disciplinary authority has not read the judgement of the criminal Court. He had only been informed initially by the Superintendent of Police that the petitioner was arrested in a criminal case, registered against him under the Indian Forest Act and thereafter the Superintendent of Police had sent a copy of TMP No. 19/5A dated 9.1.1987 to the Divisional Manager whereby it is mentioned that the petitioner was convicted by SDJM, Theog on 26.12.1984. Thereafter, it is mentioned that the Hon’ble Supreme Court had reduced the period by four months from the total imprisonment i.e. six months. It was necessary for the disciplinary authority to go through the judgement of criminal Court dated 26.12.1984. The service of the petitioner has been terminated only on the ground that he was convicted as is evident from order dated 31.1.1987. The tone and tenor of the reply filed by the respondent- Corporation before the learned Tribunal was that once the conviction has been recorded the employee has to be dismissed. The disciplinary authority has erred in law by coming to this conclusion. He was bound to consider whether the conduct of the petitioner warranted the imposition of penalty and what that penalty should have been. The learned Tribunal has also erred in law by not taking into consideration the entire judgement of the Union of India vs. Tulsiram Patel (supra) more particularly para 127 thereof. The learned Tribunal had only quoted some excerpts from the judgement without noticing the ratio of the judgement. In a recent judgement State of Madhya Pradesh and others vs. Hazarilal (2008) 3 Supreme Court Cases 273 their Lordship’s of the Supreme Court had the occasion to go into the proportionality while imposing the punishment after an employee has been convicted by the criminal Court. Their Lordships have held that conviction for a criminal offence does not imply that dismissal must be imposed in every case. The power is to be exercised reasonably and fairly keeping in view the nature of offence and sentence imposed. Their lordships were considering Rule 19 of the M.P.Civil Services (Classification, Control and Appeal) Rules, 1966 pari materia with Rule 19 of the Central Civil Services (Classification Control and Appeal) Rules 1965. Their lordships have held as under “Rule 19 of the M.P.Civil Services (Classification, Control and Appeal) Rules, 1966, which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus: “19. Special procedure in certain cases.- Notwithstanding anything contained in Rule 14 to Rule 18 – (i) where any 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 by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this Rule.” By reason of the said provision, thus, “the disciplinary authority has been empowered to consider the circumstances of the 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”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. The Tribunal, in our opinion, rightly placed reliance upon the decision of this Court in Shankar Dass v. Union of India wherein this Court commended the judgement of a Magistrate of Delhi as he had let off the appellant therein under Section 12 of the Probation of Offenders Act stating: (SCC p.361, para 6) “Misfortune dogged the accused for about a year… and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958.” Despite the said observation Shankar Dass was dismissed form service. This Court held :(SCC p.362, para 7) “7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. 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 non-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 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 justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.” We express similar dissatisfaction in this case. Furthermore, the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. (See Indian Airlines Ltd. v. Prabha D. Kanan, State of U.P. v. Sheo Shanker Lal Srivastava and M.P. Gangadharan v. State of Kerala.) At this stage we may also notice the application of the Doctrine by the United Kingdom House of Lords in Seal v. Chief Constable of South Wales Police, Huang v. Secy. of State for the Home Deptt., Tweed v. Parades Commission for Northern Ireland, Belfast City Council v. Behavin Ltd. and R (Countryside Alliance) v. Attorney General. It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed after referring to previous decisions and authorities, observed: (WLR p. 15, para 35) “ 35… ’27…. The starting point is that there is an overlap 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 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 inasmuch 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 R.V.Ministry of Defence, ex p Smity is not necessarily appropriate to the protection of human rights. “ In view of the observations made here-in-above and the law laid down by the Hon’ble Supreme Court, the writ petition is allowed. The order dated 17th August, 2001 passed in O.A. No.1094 of 1991 is set-aside. The penalty of removal imposed upon the petitioner vide office order dated 31st January, 1987 is also quashed and set aside. Now the Court has to consider whether in the peculiar facts and circumstances of the case the Court should direct his reinstatement or he can be compensated by granting him consolidated sum. The petitioner at the time of filing of this petition was 49 years of age and now he is about 56 years of age. He was working as a driver. In these circumstances since the petitioner had to retire at the age of 58 years, it will be in the interest of justice if we direct the respondents to pay to the petitioner a sum of Rs.two lakhs instead of ordering his reinstatement. Hence, the respondents now will pay to the petitioner a sum of Rs.two lakhs towards full and final settlement of this case within eight weeks. No costs. ( Deepak Gupta), J. April 10 , 2008 ( Rajiv Sharma), J. ™