CIVIL WRIT PETITION NO.7644 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: NOVEMBER 09, 2009 Man Singh .....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. R. S. Bajaj, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who was serving as Sub Inspector in Haryana Armed Police, was dismissed from service due to his conviction for offences under Sections 148, 325, 307, 323, 149 IPC read with Section 27 of the Arms Act. The petitioner would claim that he was falsely implicated in this FIR due to party faction in his village. He would also say that this conviction had no connection with his CIVIL WRIT PETITION NO.7644 OF 2007 :{ 2 }: official duties. The petitioner would also make reference to his service record, wherein he having joined the police as Constable on 16.7.1964, had arisen to the rank of Sub Inspector, to which he was promoted on 1.1.1986. The petitioner claims to his credit 70 commendation certificates/cash awards and would also plead that he has never been served any charge or memo of charges throughout his service career. The petitioner was convicted for these offences as aforementioned on 26.7.1989. Still, an order permitting the petitioner to serve beyond the age of 55 years was passed on 3.10.2002. The petitioner had appealed against his conviction and the sentence awarded to him was reduced to the period already undergone coupled with a direction to pay a fine of Rs.10,000/-. The petitioner was due to superannuate w.e.f 31.7.2004. Still the impugned order, dismissing the petitioner from service was passed on 2.4.2004. The petitioner had impugned this order by filing appeal, followed by supplementary appeal but both the appeals were dismissed on 28.9.2005. His plea for mercy was also declined on 14.8.2006. The petitioner thereafter has filed the present writ petition. The respondents would justify the impugned order and would say that it was passed in accordance with law. The sentence awarded to the petitioner was reduced to a period already undergone coupled with fine of Rs.10,000/- for other offences and he was sentenced for one year rigorous imprisonment for an offence under Section 27 of the Arms Act and for this he was released on probation. Referring to the order of conviction and sentence passed in respect of the petitioner, the respondents would justify the order of CIVIL WRIT PETITION NO.7644 OF 2007 :{ 3 }: dismissal. As per the reply, respondent No.4 had applied his mind as per the provisions contained in Rule 16.2(2) of the Punjab Police Rules, while directing dismissal of the petitioner from service. Accordingly, the respondents has prayed for dismissal of the writ petition. Based on the facts, as afore-mentioned, the learned counsel for the petitioner submits that the offences for which the petitioner has been convicted are those, which are not involving moral turpitude. The counsel has placed reliance on number of judgments to contend that the punishing authority did not apply its mind before passing the order of dismissal, as was required under law. A perusal of the impugned order would show that mention is made to the factual position about the conviction of the petitioner, his filing of appeal and ultimately the sentence upheld and his release on probation. Having noticed the same, the punishing authority has observed that sentence has been upheld by the High Court and there is no indication if any appeal has been filed in the Apex Court and accordingly, the petitioner was ordered to be dismissed from service with immediate effect. Apparently, the order does not contain any indication if the nature and gravity of the offence was taken into consideration while passing the impugned order. The order also does not show if the punishing authority kept in view the long service of the petitioner, especially so when he was due to retire within a few months time. Rule 16.2 of the Punjab Police Rules provide that dismissal shall be awarded only for gravest act of misconduct and in making such an award, regard shall be had to the length of service of the offender and his claim to pension. Thus, length of service CIVIL WRIT PETITION NO.7644 OF 2007 :{ 4 }: rendered is one of the ground, which has to be taken into consideration by the punishing authority while dismissing an employee. Though, the liability to dismissal under clause (a) of the Second proviso to Article 311 (2) of the Constitution, would not cease on account of the release of the petitioner on probation but still while directing dismissal of an employee on the basis of a conviction of a criminal charge, the power is required to be exercised fairly, justly and reasonably. In this regard, reference can be made to Shankar Dass Vs. Union of India, AIR 1985 SC 772. In para 7, 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 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 CIVIL WRIT PETITION NO.7644 OF 2007 :{ 5 }: 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 Full Bench decision of this Court in Om Parkash Vs. The Director Postal Services (Posts and Telegraphs Deptt.), Punjab Circle, Ambala and others, AIR 1973 Punjab and Haryana 1, it is held that departmental punishment of a Government servant is not a necessary and automatic consequence of conviction on a criminal charge. The competent authority has to consider all the circumstances of the case and then make such order in relation to question of imposition of penalty on the Government servant for his original conduct, which has led to his conviction. It is also held that the authority competent to take disciplinary action under Rule 19(1) of 1965 Rules against Central government servant convicted on a criminal charge has to consider all the circumstances of the case and then decide (a) whether the conduct of delinquent official, which led to his conviction is such as to render his further retention in public service undesirable; (b) if so, whether dismiss or remove him from the service or compulsorily retire him and see if the said conduct of the official is not such which render his further retention in service undesirable, whether the minor punishment, if any, shall be inflicted or not. A Division Bench of this Court in Hari Ram Vs. Dakshin CIVIL WRIT PETITION NO.7644 OF 2007 :{ 6 }: Haryana Bijli Vitaran Nigam Ltd. And another, 2006 (2) SCT 112 again took a similar view while relying upon Full Bench decision of this Court in Om Parkash's case (supra) and has held that upon conviction in a criminal charge, dismissal from service is not automatic. It is further held that the competent authority has to consider and apply its mind to the judgment of the criminal Court and other material available on record and reach a definite conclusion that due to the conviction it is no more desirable to retain the employee in service. Dismissal straightway on account of conviction, thus, can not be sustained. Even in the case of Union of India and another Vs. Tulsi Ram Patel, AIR 1985 SC 1416, the Hon'ble Supreme Court held 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 judgement 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 CIVIL WRIT PETITION NO.7644 OF 2007 :{ 7 }: 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.” Reference here can also be made to other cases like The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan, (1976) 3 SCC 190, Union of India Vs. V.K.Bhaskar, (1997) 11 SCC 383, 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 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 CIVIL WRIT PETITION NO.7644 OF 2007 :{ 8 }: 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 is, thus, clear that the requirement of law while directing dismissal of the petitioner has not been undertaken. The petitioner simply has been dismissed from service upon his conviction, which may not be permissible. Even his unblemished service of nearly 40 years was not given any consideration whatsoever while passing the impugned order. The punishing authority would be under legal obligation to consider all these aspects while passing the order of dismissal. The impugned order of dismissal, as such, can not be sustained and the same is set-aside. The respondents would re- consider the entire case afresh in terms of the law laid down and as noticed above and pass a fresh order in accordance with law. It would be for the respondents to consider the case and see if the CIVIL WRIT PETITION NO.7644 OF 2007 :{ 9 }: conviction would deserve the penalty of dismissal, removal or reduction in rank or any other penalty would suffice. Let the needful be done within a period of three months from the date of receipt of copy of this order. November 09,2009 ( RANJIT SINGH ) khurmi JUDGE