--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITION NO. 11671 / 2010 SHIVJI ADIWASI S/O KODARJI ADIWASI Vs. THE STATE OF MP & 7 OTHERS * * * * * O R D E R ( 13/12/2011) The petitioner before this Court has filed this present writ petition being aggrieved by the order dt. 7/1/06. The contention of the petitioner is that he was appointed as a Forest Guard on 1/6/75 and date of birth of the petitioner is 2/1/46. Petitioner has further stated that a criminal case was registered against him for commission of offence punishable u/S. 307 of the Indian Penal Code and finally by a judgment of conviction dt. 23/7/93, three years rigorous imprisonment along with a fine of Rs.1000/- was imposed upon him. Petitioner has further stated that an appeal was preferred before this Court being Cr.A.No. 363 / 93, and this court converted the conviction of the petitioner u/S. 324 of the --- 2 --- Indian Penal Code and the sentence was reduced to the period already undergone by the petitioner. Learned counsel for the petitioner has vehemently argued before this Court that the petitioner was not involved in any case relating to the moral turpitude and for an offence u/s. 324 of the Indian Penal Code, he has been dismissed from service. He has placed reliance upon a judgment delivered by the apex Court in the case of State of Madhya Pradesh and others Vs. Hazarilal (2008) 3 SCC 273. He has prayed for quashing of the order dt. 7/1/06. A reply has been filed in the matter and the stand of the State Government is that the petitioner was ultimately convicted even by this Court in Cr. A. No. 363 / 93 and his conviction was converted u/S. 324 of the Indian Penal Code in stead of u/S. 307 of the Indian Penal Code. The respondents have also stated that they have passed the impugned order after granting an opportunity of hearing to the petitioner keeping in view the provisions of MP Civil Services (Classification, Control and Appeal) Rules, 1976 and therefore no case for interference is made out in the --- 3 --- matter and the writ petition deserves to be dismissed. Heard learned counsel for the parties at length and perused the record. In the present case, it is an admitted fact that the petitioner's date of birth is 2/1/46 and he was appointed as a Forest Guard on 1/6/75. The petitioner was convicted by a judgment of conviction dt. 23/7/93 for an offence u/S. 307 of the Indian Penal Code and finally this court has partly allowed the petitioner's appeal being Cr.A.No. 363 / 93 and his conviction has been converted from Sec. 307 to Sec. 324 of the Indian Penal Code. The jail sentence was also reduced to the period already undergone. This Court has carefully gone through the order passed by Divisional Forest Officer, and the same reveals that he has passed the order dt. 7/1/06 in a most mechanical manner without considering the date of birth of the petitioner ie., 2/1/06. Not only this, he has also not into account the fact that the petitioner was convicted only for an offence punishable u/S. 324 of the Indian Penal Code. In the present case, it is a case of a Tribal who was serving the Forest --- 4 --- Department and on account of some incident wherein the other Tribals have killed the horse of the petitioner, the alleged incident took place resulting in injuries and finally the petitioner has been punished for an offence u/s. 324 of the Indian Penal Code. The petitioner has served the State of Madhya Pradesh with sincerity and devotion till his retirement and it is not a case where the petitioner was prosecuted on account of some lapse committed while on duty. The apex court in the case of State of Madhya Pradesh and others Vs. Hazarilal (2008) 3 SCC 273 wherein the apex court in paragraphs 3, 5, 7, 8 and 16 has held as under : 3. Respondent thereafter filed an Original Application before the State Administrative Tribunal, Gwalior. The Tribunal by an order dated 25th November, 2002 allowed the said application holding. - "However, the applicant succeeds on the ground that the punishment of removal from service is grossly excessive because the punishment was only under section 323 IPC and the High Court has clarified that the punishment does not involve any moral turpitude every power vested in a public authority has to be exercised fairly, justly and reasonably. Respondents should have applied their mind to the penalty --- 5 --- which should be appropriately be imposed in the circumstances of the case. Please see Shankar Das v. Union of India (1985 (2) SCC 358). This does not seem to have been done." A writ petition filed thereagainst by the appellants before the High Court has been dismissed by reason of the impugned judgment. 5. The case in hand appears to be a gross one. This Court is unable to appreciate the attitude on the part of the appellant herein which ex-facie appears to be wholly unreasonable. Respondent had not committed any misconduct within the meaning of the provisions of the Service Rules. He was involved in a matter for causing simple injury to another person. He was not even sent to prison. Only a sum of Rs.500/- was imposed upon him as fine. 7. By reason of the said provision, thus, "the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge", but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted. 8. An authority which is conferred with a statutory discretionary power is bound to take --- 6 --- into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. Respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence. 16. Reliance has been placed by the learned counsel on Coimbatore District Central Cooperative Bank vs. Coimbatore District Central Cooperative Bank Employees Association and another, (2007) 4 SCC 669 wherein also this Court accepted the applicability of the doctrine of proportionality. Therein this Court has quoted with approval the decision of this Court in Ranjit Thakur vs. Union of India and others : (1987) 4 SCC 611 as also M.P. Gangadharan and another vs. State of Kerala and others : (2006) 6 SCC 162, which had applied the doctrine of proportionality. This Court is of the considered opinion that the penalty awarded to the petitioner is certainly excessive and the entire terminal dues could not have been wiped out in the manner and method it has been done in case of the --- 7 --- petitioner. Resultantly, in the light of the judgment delivered by the apex court in the case of State of Madhya Pradesh and others Vs. Hazarilal (2008) 3 SCC 273, the impugned order passed by the respondents dt. 7/1/06 is hereby quashed. The writ petition is allowed. The matter is remanded back to the Divisional Forest Officer / Competent Authority to pass a fresh order taking into account the judgment delivered by the apex court and also taking into account that the petitioner was not involved in a case involving moral turpitude, the disciplinary authority shall also take into account the unblemished record of the petitioner and the fact that he has completed the age of retirement. The aforesaid exercise of passing an appropriate order be concluded within a period of 60 days from the date of receipt of certified copy of this order. With the aforesaid, this petition stands allowed. No order as to costs. (S. C. SHARMA) J U D G E KR