R.S.A. No. 627 of 1997(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 627 of 1997(O&M) Date of decision: 21-7-2010 The Punjab State and another ......... Appellants Vs Shri Ram Asra .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General Punjab, for the appellants Mr. R.S.Bajaj, Advocate, for the respondent. HARBANS LAL, J. This appeal is directed against the judgment/decree dated 10.8.1996 passed by the court of learned Additional District Judge, Jalandhar whereby he dismissed the appeal filed by the State of Punjab and another against the judgment/decree dated 11.1.1993 rendered by the court of learned Sub Judge IInd Class, Jalandhar vide which he decreed the suit in favour of the plaintiff for declaration to the effect that order No. 71 dated 16.4.1986 passed by the Executive Engineer, Construction Division, P.W.D. Jalandhar whereby the period of suspension from 23.7.1982 to 24.1.1984 of the plaintiff was treated as leave of the kind due and he was also censured is illegal, void, unlawful and unconstitutional and is, therefore, not binding on him. However, while dismissing the appeal, the learned Additional District Judge, Jalandhar observed that this will not preclude the competent authority from passing a fresh order in accordance with law. The factual matrix is that the plaintiff joined as Beldar in the R.S.A. No. 627 of 1997(O&M) 2 construction Sub Division of Public Works Department at Jalandhar in April, 1973. His work and conduct throughout had been satisfactory. He was involved in a false case bearing F.I.R. No. 177 dated 23.7.1982 under Sections 363/366 of the Indian Penal Code registered in Police Station Division No.6, Jalandhar. He was placed under suspension w.e.f. 23.7.1982 for having been arrested in the said criminal case. On conclusion of the trial, he was convicted under Section 363 of I.P.C. on 1.12.1983 and released on probation of good conduct. Vide order dated 16.4.1986 passed by the Executive Engineer, Construction Division, Jalandhar the period of suspension of the plaintiff from 23.7.1982 to 24.1.1984 was treated as leave of the kind due and punishment of censure was imposed upon him. The order has been impugned on the grounds that no opportunity of being heard was afforded to him before it was passed; that no enquiry was conducted against him; that this is non-speaking and the penalty could not be imposed merely for the reason that he was convicted. The defendants in their joint written statement have inter-alia pleaded that a criminal case was registered against the plaintiff, who was ultimately convicted under Section 363 of the Indian Penal Code and was released on probation by the court of learned Additional Chief Judicial Magistrate, Jalandhar and after the decision of the criminal case, the penalty vide the order impugned was imposed in accordance with the provisions of law. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the order dated 16.4.86 of the defendants is illegal, void and is liable to be set aside?OPP R.S.A. No. 627 of 1997(O&M) 3 2. Whether the plaintiff is entitled to the declaration prayed for on the allegations made in the plaint?OPP 3. Whether the suit is within time?OPP 4. Whether a valid notice under section 80 C.P.C. had been issued before filing the suit?OPP 5. Whether the suit is not maintainable in the present form?OPD 6. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court decreed the suit as noticed at the outset. Feeling aggrieved therewith, the defendants went up in appeal, which was dismissed by the court of learned Additional District Judge, Jalandhar. Being dissatisfied therewith, the defendants have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal on behalf of the appellants urged with a good deal of force that the plaintiff-respondent having been convicted though released on probation, in no manner can be deemed to have been honourably acquitted. The courts below have lost sight of the fact that the punishing authority had taken a lenient view, wherein the period of suspension from 23.7.1982 to 24.1.1984 of the plaintiff-respondent was considered as leave of the kind due and he was further censured. Thus, obviously, the punishing authority had taken minimum action against the plaintiff-respondent by taking into consideration the entirety of the facts of the case. Per contra Mr. R.S.Bajaj, Advocate, appearing for the R.S.A. No. 627 of 1997(O&M) 4 respondent maintained with great vigour that as ruled by this Court in Man Singh Versus State of Haryana 2010(1) Service Cases Today 604, “the punishing authority in a case of conviction of an employee in criminal charge has to consider whether it is desirable to keep him in service after his conviction or not and his dismissal from service is not automatic.” But here in this case, the punishing authority without considering this fact had passed the impugned order and it is because of this reason it has been held to be illegal, null and void by both the courts below. This contention merits acceptance for the discussion to follow hereunder:- Mere conviction of a Government employee in a criminal case does not ipso facto entail penalty, but it is his conduct which led to such conviction is required to be taken into consideration for imposing penalty. The impugned order No.71 dated 16.4.1986 Ex.P-2 reads as under:- “In consonance with Chief Engineer Punjab, PWD B&R Br. Memo No.4796 dated 11.9.85 and Chief Secretary Punjab Chandigarh letter No. 5657-2G SJ-77/26911 dated 23.6.77 read with Supreme Court of India judgment AIR 1975 SC 2216, the period of suspension from 23.7.82 to 24.1.84 of Sh. Ram Asra Beldar s/o Sh. Gokhru is treated as leave of the kind due. Moreover, Sh. Ram Asra Beldar is hereby censured.” Palpably, this order is cryptic about the fact that the judgment rendered by the court of learned Additional Chief Judicial Magistrate, vide which the plaintiff-respondent has been convicted was gone through by the competent authority and after due and independent application of mind to the conduct of plaintiff-respondent had reached the conclusion that his conduct which had led to his conviction was such as warranted the imposition of penalty R.S.A. No. 627 of 1997(O&M) 5 and what it should be. In Union of India and another Vs. Tulsi Ram Patel, A.I.R. 1985 Supreme Court 1416 it has been ruled 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 a penalty and, if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the 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, a 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 Shankar Dass Vs. Union of India A.I.R. 1985 SC 772 it has been held as under:- “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 in so far as his R.S.A. No. 627 of 1997(O&M) 6 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 no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Cl. (a) of the second proviso to Art. 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 opinion s that the penalty of dismissal from service imposed upon the appellant is whimsical.” In The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan (1976) 3 Supreme Court Cases 190, it was observed as under:- “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 R.S.A. No. 627 of 1997(O&M) 7 is likely to have on the administration.” In Union of India Vs. V.K.Bhaskar (1997) 11 Supreme Court Cases 383 it was 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 considering the nature of conduct.” In Rajinder Singh Vs. Board of School Education Haryana and another 1996(4) Recent Service Judgments 417 it has been held 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.” This has to depend on the objective application of mind by the employer to the facts of the given case. In Rajinder Singh's case (supra), the conviction simpliciter was made the basis of dismissal of the employee from service. There was nothing in the record in that case to indicate that the respondents had considered the conduct of the petitioner therein which led to his conviction. The rule laid down in these authorities is to the effect that there can be no automatic dismissal from service merely on conviction and it is imperative upon the competent authority to apply its mind to the judgment of the criminal court as also the 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 the instant case, the period of suspension of the plaintiff-respondent from 23.7.1982 to 24.1.1984 has been treated as leave of the kind due besides his having been censured despite the fact that he was released on probation of good conduct and without taking into consideration his conduct. The punishing authority was under legal obligation to consider all these aspects, while passing the impugned order. The punishing authority giving a go bye to the factual R.S.A. No. 627 of 1997(O&M) 8 scenario has passed the impugned order, which thus cannot be sustained. Consequently, the findings returned by both the courts below cannot be faulted with in any manner. As a sequel of the above discussion, this appeal fails and is dismissed with no order as to costs. Since the main appeal is decided as such all the pending Civil Miscellaneous, if any, stand disposed of. (HARBANS LAL) JUDGE July 21, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes