CIVIL WRIT PETITION NO.5946 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 08, 2009 Bharat .....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. Ashish Aggarwal, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Bribe taking Patwari relies on technicalities to save his service from which he stands dismissed upon his conviction for an offence under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”). He has filed this writ petition for setting-aside this order of dismissal on the ground that his conviction was made the sole basis of the order without CIVIL WRIT PETITION NO.5946 OF 2009 :{ 2 }: considering the conduct, the past record and length of service. This, as per the petitioner, would make the order illegal, ultra-vires, void and without jurisdiction. Would this proved misconduct in accepting bribe call for any punishment less than dismissal? Is there a need to evaluate facts in such like cases, if nothing less than dismissal may be called for? Asking the authorities to do, may lead to stretching things to the point of breaking. The petitioner, while working as Patwari, allegedly accepted a bribe of Rs.1500/- from one Jai Narain on the pretext of preparing a copy of jamabandi of his land. After trial, the petitioner has been convicted by Special Judge, Rohtak and sentenced to suffer rigorous imprisonment for two years coupled with fine of Rs.2,000/-. The petitioner still would make a futile attempt to refer to the evidence to question his conviction in the present writ petition. Obviously, this Court can not examine the validity of the conviction here. The main challenge of the petitioner ofcourse is to the order of dismissal, which was passed by the Collector on 30.3.2009 on the ground that he stood convicted in a criminal case. To impugn this dismissal, the petitioner would first refer to Rule 7(1) of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (for short, “the Rules”) to say that major penalty can be imposed only after giving reasonable opportunity or showing cause against the action proposed to be taken. He himself would then make reference to proviso (b) to Rule 7(2), which provides that the provisions of sub-rule shall not apply where any major penalty is proposed to be imposed on a person on the ground of conduct which CIVIL WRIT PETITION NO.5946 OF 2009 :{ 3 }: has led to his conviction on a criminal charge. The counsel for the petitioner would equate the provisions of this proviso to the provisions of Article 311(2) of the Constitution and thereafter by referring to number of judgments would urge that dismissal of an employee on account of his conviction in a criminal case cannot be automatic. He would further urge that while dismissing an employee on the basis of his conviction on a criminal offence, the punishing authority has to consider the conduct of the employee, which has led to his conviction, his past service record, his length of service and thereafter has to pass an order on objective application of mind. The punishing authority, as per the counsel, is then to decide if the employee is to be compulsorily retired or is to be awarded any lesser punishment considering the facts of the case. The counsel has accordingly challenged the order of his dismissal to be bad in law and, thus, would say that the same is not sustainable. In the reply filed, the respondents would dispute the claim made by the petitioner in his petition. The respondents would justify dismissal of the petitioner on the ground that he stands convicted for an offence under the Prevention of Corruption Act, which is right and justly recorded. As per the respondents, the petitioner has been rightly dismissed by keeping in view the findings and the reasons recorded, which according to them, would render him unsuitable to remain in service. To substantiate his plea, the petitioner has made reference in detail to a Division Bench judgment passed by this court in LPA No.204 of 2007, decided on 4.10.2008. It is observed in this case that the protection under Article 311(2) of the Constitution CIVIL WRIT PETITION NO.5946 OF 2009 :{ 4 }: against dismissal, removal or reduction in rank of giving a reasonable opportunity of being heard is not available if such punitive action is taken on the basis of a conduct which has led to conviction on a criminal charge. While touching the scope of this provision, the court has made reference to the case of Union of India Vs. Tulsi Ram Patel, 1985(3) SCC 398, where it is observed that the charge in a criminal case must relate to a misconduct of such magnitude as would have deserved the penalty of dismissal, removal or reduction in rank. It is further observed that if the conduct is such which deserves a lesser punishment, the second provision cannot come into play at all for the reason that Article 311(2) itself is confined to those three penalties only. In my view, it would not be fair to compare the provisions of Article 311(2) with that of Rule 7 of the Rules. Article 311 is confined to three penalties of dismissal, removal or reduction in rank, but Rule 7 of the Rules would permit award of various other penalties which are described as major penalties. The penalties under Rule 7 are not restricted to dismissal, removal or reduction, but contain some other punishments, like withholding of increments of pay with cumulative effect, compulsory retirement etc. In Tulsi Ram Patel's case (supra), the Hon'ble Supreme Court has observed that magnitude of the misconduct has to be considered from the angle of award of these three penalties and, thus, it may not strictly apply to the present case where order is passed under Rule 7 of the Rules, though it may be having a similar proviso. The Division Bench of this Court has made reference of number of other cases like The Divisional Personnel Officer, Southern Railway Vs. T.R.Chellappan, (1976) 3 SCC 190, Union CIVIL WRIT PETITION NO.5946 OF 2009 :{ 5 }: of India Vs.V.K.Bhaskar, (1997) 11 SCC 383, Om Parkash V. Director, Postal Services (Post & Telegraphic Department), AIR 1973 P&H 1, Rajinder Singh Vs. Board of School Education Haryana and another, 1996(4) RSJ 417, Kulwant Singh Vs. The Deputy District Primary Education Officer, Gurdaspur, 1997(1) SCT 282 and Hari Ram Vs. Dakshin Haryana Bijli Vitaran Nigam Ltd. And another, 2006(2) SCT 112. 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. The Full Bench of this court in Om Parkash's case (supra) has held as under:- “(i) the departmental punishment of removal or dismissal from Government service is not an essential and automatic consequence of conviction on a criminal charge; (ii)the authority competent to take disciplinary action under Rule 19(i) of the 1965 Rules against a Central Government servant convicted on a criminal charge has to consider all the circumstances of the case and then to decide (a) whether the conduct of the delinquent official which led to his conviction is such as CIVIL WRIT PETITION NO.5946 OF 2009 :{ 6 }: to render his further retention in public service undesirable; (b) if so, whether to dismiss him or to remove him from service, or to compulsorily retire him; and (c ) if the said conduct of the official is not such which renders his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him; (emphasis applied)”. 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 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 CIVIL WRIT PETITION NO.5946 OF 2009 :{ 7 }: that offences were not involving moral turpitude. The proposition of law as laid down in the judgments would not be in serious dispute. The facts in the present case, however, are self speaking and be in itself a ground enough to distinguish these judgments on facts. A person, who is accused of accepting illegal gratification, can certainly not plead that the offence of which he is convicted would not be involving moral turpitude. The perusal of the impugned order would otherwise show that the gravity of the misconduct and the impact of the same on the administration was duly considered before passing the order of dismissal. Having made note of the allegations against the petitioner in detail for accepting bribe and the background of grant of sanction etc. and the factum of his conviction, the punishing authority observed as under:- “On the charge of having taken bribe of Rs.1500/- against Shri Bharat Patwari in lieu of an official work, having been proved, the Hon'ble Court has punished him and has also imposed fine upon him. Therefore, by keeping this employee in service, there shall be possibility of this employee to demand bribe for official works and moreover, an adverse influence shall also be caused on the other employees that an employee who has been punished for accepting bribe has been kept in government service. By this, there will be encouragement to corruption in official works. It has become a grave problem of employees taking bribe in government offices for doing official work and for stopping of which strict measures are required. In this manner, Shri Bharat CIVIL WRIT PETITION NO.5946 OF 2009 :{ 8 }: Patwari is not liable to be kept in service for having been punished under the Prevention of Corruption Act. The Government vide its letter No.ARS-4-2008/12179, dated 26.9.08 has also issued instructions as under:- “When the Court convicts an employee and if the sentence of the convicted employee is suspended in appeal, then there is no Ban in the Dismissal of the convicted employee and the employee cannot be reinstated on that basis”. It is, thus, clear that the punishing authority has not dismissed the petitioner only on the basis of his conviction, but has kept in view the impact thereof on the administration or in the department. This is what is the ratio that will emerge from T.R.Chellappan's case (supra). It can, thus, be said that the order of dismissal was passed against the petitioner after due consideration of his conduct which led to his conviction on a criminal charge. That is what is the observation made in V.K.Bhaskar's case (supra). The observation of the Full Bench of this court in Om Parkash's case (supra) would also stand satisfied as the impugned order duly reflects all the circumstances of the case and the view that has been formed to the effect that his conviction is such as would render his further retention in public service undesirable. In a case of conviction for bribe, it would not be possible to view the allegation with any leniency to consider the award of punishment other than dismissal. The offence and the conduct in such like cases is such that dismissal would be the appropriate way of dealing with an employee. Ratio laid down in the case of Kulwant Singh's (supra) would not apply as it CIVIL WRIT PETITION NO.5946 OF 2009 :{ 9 }: was even not urged by the counsel for the petitioner that the offence alleged against him would not be involving moral turpitude. In Kulwant Singh's case, the dismissal order was set aside on the ground that the conviction was not for offences involving moral turpitude. It is not a case which can be termed as one where there has been automatic dismissal of the petitioner from service merely on conviction in a criminal case. The impugned order very well reflects the application of mind to the facts and background of the case and the conduct of the petitioner which has led to his conviction and then order of dismissal has been passed. There is, thus, no merit in any of the pleas raised by the petitioner to impugn his order of dismissal. A bribe is an offence which will deserve no leniency or sympathy. It is one of those offences where even bribe given is not spared by law. Bribe is something which brings disgrace and shame not only for the concerned person but to the Society and Nation as such. Therefore, such employees guilty of accepting bribe, would need to be dealt with stern hand so as to eradicate this menace from the society. The writ petition is accordingly dismissed. October 08, 2009 ( RANJIT SINGH ) khurmi JUDGE