CIVIL WRIT PETITION NO.10603 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 03, 2010 Satish Kumar .....Petitioner VERSUS State of Haryana and another ....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. Sanjay Vashisth, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, who was a Patwari, was dismissed from the service due to his conviction for a criminal offence under Sections 7 and 13 of the Prevention and Corruption Act (for short, “the Act”). He has filed this writ petition to impugn the order of his dismissal and would urge that dismissal so ordered only on the ground of conviction for a criminal offence, without holding departmental enquiry, is bad and so should be set-aside. On 8.2.2006, an FIR was registered against the petitioner CIVIL WRIT PETITION NO.10603 OF 2010 :{ 2 }: for his involvement in a case under Sections 7 and 13 of the Act with the allegation that he had demanded and accepted a bribe of Rs.2500/- for issuing copies of revenue record. After trial, the petitioner was convicted for the offences on 4/6.8.2009 and sentenced to undergo rigorous imprisonment for three years and one year coupled with fine of Rs.2000/- and Rs.1000/- for offences under Sections 13 and 7 of the Prevention of Corruption Act respectively. The petitioner had filed an appeal against his conviction before this Court and sentence, as awarded, has been suspended during the pendency of the appeal. The petitioner continued to serve on the post even after his conviction. He, however, was served a show cause notice on 3.2.2010, requiring him to show cause as to why he should not be dismissed from service on account of his conviction and sentence as awarded and thereafter was dismissed from service. The grievance of the petitioner is that no departmental enquiry was held and the procedure as adopted to dismiss the petitioner is in violation of the requirement laid down in the statute. The petitioner had submitted reply to the show cause notice, pointing out that the appeal against his conviction was pending. He had also filed a writ petition before this Court on 23.4.2010 to challenge the show cause notice, which was disposed of with a direction to the respondents to consider the reply of the petitioner to the show cause notice at the time of passing final order. The petitioner, however, was dismissed on 17.5.2010 and, thus, has filed the present writ petition to impugn the said order. By way of preliminary objections in the reply filed, it is CIVIL WRIT PETITION NO.10603 OF 2010 :{ 3 }: stated that the petitioner has approached this Court before exercising alternative remedy of filing appeal available to him and hence, the petition was liable to be dismissed on this short ground. The respondents would also urge that action against a person who is convicted of a criminal offence involving moral turpitude is not barred merely because the sentence or order of conviction has been suspended. The action of the respondents in dismissing the petitioner from service is, thus, justified. Reference is also made to the instructions issued by the respondents on 26.9.2008 (Annexure R-1), which are invoked in support of the action taken by them. The respondents would rather urge that opportunity of hearing was granted to the petitioner by taking lenient view and the impugned order has been passed after hearing him, though he had not filed any reply to the show cause notice. The counsel for the petitioner has primarily urged that order of dismissal without holding departmental enquiry would be bad and in violation of the statutory provisions and hence, can not be sustained. He would also urge that the sentence awarded to the petitioner has been suspended and the respondents should have awaited for the outcome of the appeal before passing the order of dismissal. The counsel has placed reliance on Chandu Lal Vs. The Management of M/s Pan American World Airways Inc., AIR 1985 Supreme Court 1128, where it is observed that termination of services on the ground of loss of confidence does not amount to retrenchment and, thus, holding a domestic enquiry is a condition precedent. The Hon'ble Supreme Court in this case was dealing with a case under the Industrial Disputes Act where services of a CIVIL WRIT PETITION NO.10603 OF 2010 :{ 4 }: workman were terminated on the ground that he was involved in an act of smuggling. That was not a case where the workman had been convicted for a criminal offence, as is the case of the petitioner. In any case, entirely different issue was under consideration before the Hon'ble Supreme Court in view of the provisions of the Industrial Disputes Act. Reliance on this judgment is totally misconceived. The respondent-State is justified in making reference to a decision in the case titled Ashok Kumar Vs. State of Haryana and others (Civil Writ Petition No.6454 of 2009), decided on 9.11.2009, where this Court has decided number of writ petitions containing an identical point and has dismissed all the said writ petitions. In Ashok Kumar's case (supra) also, the petitioners were Patwaris and had been prosecuted for offences under the Act, for which they were convicted. The issue was whether a person who is convicted for an offence, can be imposed a major penalty under Article 311 of the Constitution or not. This Court, in this regard, held as under:- “Upon conviction of an employee for an offence of Prevention of Corruption Act, the only proper course ofcourse would be to take recourse to Article 311 (2)(a). Would there be any justification for keeping in service any person who is convicted for an offence under the Prevention of Corruption Act? Such a person when convicted and sentenced would deserve no consideration for being kept in service. Keeping him in service would amount to adding premium to the corruption. Would it not amount to giving chance to him to indulge in corrupt practices? Once the petitioners were convicted for CIVIL WRIT PETITION NO.10603 OF 2010 :{ 5 }: offences under the Prevention of Corruption Act, the only proper course was to take action against them under Article 311(2)(a) of the Constitution.” In this very case, the Court has observed that Article 311 regulates dismissal, removal or reduction in the rank of a person employed in the civil capacity under the Union or a State. This Article is said to be a salutary provision to the effect that no person who is a member of civil service shall be dismissed or removed by an authority subordinate to that by which he was appointed. This principle is ofcourse diluted by specifically providing that this clause shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge. In this regard, reference can be made to the provisions of Article 311, which is reproduced below:- “311. Dismissal, removal or reduction in rank of person employed in civil capacities under the Union or a State.-(1) No person who is a member of a civil service of the Union or an all India service or a civil service or a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to CIVIL WRIT PETITION NO.10603 OF 2010 :{ 6 }: impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.” It would, thus, clearly emerge that the requirement of holding an enquiry before dismissing or removing or reducing a person in rank, will not apply in those cases where person is dismissed or removed on the ground of conduct which has led to his CIVIL WRIT PETITION NO.10603 OF 2010 :{ 7 }: conviction on a criminal charge. The submission that the respondent-authority should have waited till disposal of the appeal before passing the order is also misconceived. It was observed by the Hon'ble Supreme Court in Deputy Director of Collegiate Edu (Admn.) Madras Vs. S.Nagoor Meera, AIR 1995 SC 1364, that if the Government servant is later on acquitted, the order of dismissal or removal from service on the basis of such conviction can always be revised. In this case, it is pointedly observed that after conviction even if the sentence is suspended, the only proper course is to take action under Article 311(2)(a) of the Constitution. It may be worth noting that Article 311 (2) talks of dismissal, removal etc. on the ground of conduct, which has led to conviction on a criminal charge and it does not speak of sentence or punishment, which is awarded for such an offence. Suspension of sentence as such, would not be any valid ground to withhold action under Article 311(2). This aspect has also been amply clarified in the case of Deputy Director of Collegiate Edu (Admn.) (supra). There is, thus, no merit in the writ petition and the same is accordingly dismissed. August 03, 2010 ( RANJIT SINGH ) khurmi JUDGE