CWP No.19850 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH. CWP No.19850 of 2008 Date of decision: January 12, 2009 Parminder Singh Sodhi ...Petitioner Versus State of Punjab ...Respondents CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Kanwaljit Singh, Senior Advocate, with Mr. Harmanjit Singh, Advocate, for the petitioner. Rajan Gupta, J. The petitioner in the present case has impugned the order dated 24th September, 2008 whereby he has been dismissed from service by invoking Rule 13 (i) of Punjab Civil Services (Punishment and Appeal) Rules, 1970 (hereinafter referred to as “1970 Rules”). The grievance of the petitioner is that the said order has been passed merely on the basis of his conviction in a criminal case and that the same cannot constitute the basis for order of dismissal, there being no independent application of mind. The brief factual matrix of the case as stated in the petition is that the petitioner, who was working as District Development and Panchayat Officer (DDPO), Nawanshahar, was involved in a case under Sections 7 and 13 (i) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 for taking illegal gratification. The petitioner was convicted by Special Judge, Nawanshahar vide judgment dated 12th July, CWP No.19850 of 2008 2 2008 and sentenced to undergo rigorous imprisonment for two years and fine. The petitioner filed Criminal Appeal No.1342-SB of 2008 against the said judgment. The appeal was admitted to regular hearing on 29th July, 2008 and the sentence was suspended meanwhile. On 24th September, 2008, the petitioner was dismissed from service vide order Annexure P-8. The petitioner is aggrieved by his dismissal from service on the basis of his conviction in the criminal case. We have heard learned counsel for the petitioner and perused the record annexed with the petition. The main contention of the counsel for the petitioner is that the dismissal of the petitioner merely on the basis of his conviction in a criminal case is bad in law and therefore, deserves to be quashed. Learned counsel has placed reliance on a judgment reported as Kaur Singh and another Vs. Punjab State Electricity Board and others 2007 (4) RSJ 780 to contend that order of dismissal if based only on conviction in a criminal case, would not be sustainable. According to the counsel, such an order would be arbitrary and thus liable to be quashed. After having given our careful thought to the case in hand, we are not convinced with the argument of the counsel that the petitioner could not have been dismissed on the basis of his conviction in the criminal case. Rule 13 of 1970 Rules reads as under :- “Rule 13. Special procedure in certain cases Notwithstanding anything contained in Rules 8, 9, 10, 11 and 12- CWP No.19850 of 2008 3 (i) where any penalty is imposed on a Government employee on the ground of conduct which has led to his conviction on a criminal charge; or (ii) where the punishing authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in that 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 punishing authority may consider the circumstances of the case and make such orders thereon as it deems fit. (iv) Provided that the commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule.” The above rule clearly shows that the competent authority has the power under the rule to dismiss an employee from service on the basis of his conviction. In the present case, the allegation against the petitioner was that he demanded Rs.5000/- as bribe from the complainant for giving a report in his favour. Ultimately, he settled for Rs.3000/-. A trap was laid by the police and the petitioner was caught red handed. A trial ensued in which the petitioner was found guilty. We are thus of the considered view that the appointing authority of the petitioner rightly passed the order Annexure P-8 dismissing the petitioner from service. There is no dispute with the proposition that power is vested in the competent authority under Rule 13.1 of the 1970 Rules to dismiss an employee from service on the basis of conviction in CWP No.19850 of 2008 4 a criminal case. There is no challenge to the said rule in the present writ petition. While passing the impugned order, the competent authority observed as under:- “6. AND WHEREAS, in accordance with the provisions laid down in the Punjab Govt. instructions issued by letter no.3/23/90-1/PP-2/10394 dated 5.8.1998, it is considered that the conduct of the said Shri Parminderjit Singh Sodhi the then District Development & Panchayat Officer Nawan Shahar now at Jalandhar has led to his conviction is such as to render his further retention in the public service undesirable. 7. NOW THEREFORE in exercise of the powers conferred by rule 13 (i) of Punjab Civil Services (Punishment & Appeal) Rules, 1970, the Governor of Punjab hereby dismisses the said Shri Parminderjit Singh Sodhi the then District Development & Panchayat Officer, Nawanshahar now at Jalandhar from service with immediate effect.” In our view, judgment in Kaur Singh's case (supra) relied upon by the petitioner is not applicable to the facts of the present case as in the said case conviction of the employee was for offences under Sections 225 and 186 IPC. The court thus came to the conclusion that all the relevant factors had not been taken into consideration by the authority before mechanically passing the order of conviction. The order of dismissal was thus set aside. Liberty was, however, granted to the respondents to pass a fresh order in accordance with law. We feel that the said judgment does not help the petitioner in any manner. In the present case, the conviction of the petitioner is under the Prevention of CWP No.19850 of 2008 5 Corruption Act for demanding and accepting illegal gratification. He was caught red-handed and later convicted by the court of Special Judge, Nawanshahar. While passing the impugned order, the authority mentioned that the conduct of the petitioner while posted as DDPO Nawanshahar which had led to his conviction, had made his further retention in public service undesirable. The authority thus did consider the conduct of the petitioner and passed the impugned order, power whereof is contained in Rule 13 (i) of the 1970 Rules. In Union of India v. Tulsi Ram Patel, 1985 (2) S.L.R. 576, the apex court held as under:- “153. The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compulsory retirement, they being that the respondent's conviction under Section 332 of the Indian Penal Code and the nature of the offence committed which led the disciplinary authority to the conclusion that the further retention of the respondent in the public service was undesirable. The mention of Section 332 of the Indian Penal Code in the said order itself shows that respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public servant or in consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The respondent had gone to the office of his superior officer and had hit him on the head with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the CWP No.19850 of 2008 6 offence committed would have been the more serious one under Section 333. The respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his retention in public service was undesirable. In fact, the conduct of the respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on probation. We accordingly hold that clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the respondent.” The observations made by the apex court in para 127 are also relevant to the issue and the same read as under:- “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 penalty and, if so, what that penalty should be. For the purpose it will have to peruse the judgment of the Criminal Court and consider all the facts and circumstances of the case and the various factors set out in Challapan's case. 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. ..........” In view of the fact that the decision to remove the petitioner from service was taken only after his conviction in the criminal case and CWP No.19850 of 2008 7 after taking into account his conduct, we are of the view that no interference is called for in the impugned order. The writ petition is hereby dismissed. (RAJAN GUPTA) JUDGE (ASHUTOSH MOHUNTA) JUDGE January 12, 2009 'rajpal'