IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.12.2010 C O R A M THE HONOURABLE MR.JUSTICE K.CHANDRU Writ Petition No.45174 of 2006 (O.A.No.7094 of 2000) G.Ramadoss .. PETITIONER Vs 1.The Director of Medical Education Kilpauk Medical College Campus Chennai-600 010 2.The Dean, Government Stanley Hospital Chennai-600 001 .. RESPONDENTS Prayer:-This writ petition has been originally filed before the Tamil Nadu Administrative Tribunal O.A.No.7094 of 2000 and transferred to this Court and renumbered as W.P.No.45174 of 2006 under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records relating to the order dated 01.12.1999 made in Pa.Mu.No.2771/Nil(4)/95 passed by the 2nd respondent herein and quash the same and direct the respondents to reinstate the petitioner in service with all attendant benefits. For petitioner ... Mr.S.Shanmugasundaram For respondents ... Mr.R.Murali, Government Advocate O R D E R The petitioner was working as a Male Nursing Assistant in the Government Stanley Hospital. He filed O.A.No.7094 of 2000 before the Tamil Nadu Administrative Tribunal seeking to set aside the order dated 01.12.1999 passed by the second respondent – Dean, Government Stanley Hospital. 2. By the impugned order, the petitioner was removed from service on account of his conviction by the Sessions Court, Chennai in S.C.No.125 of 1994 dated 29.09.1994. The petitioner was shown as Accused No.2 in the Sessions Trial and the Sessions Court convicted the petitioner in terms of Section 307 read with 34 IPC and he was also sentenced to five years rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 3. The petitioner was given a show cause notice asking why he should not be removed from service. The contention of the petitioner was that he had preferred appeal in Criminal Appeal No.568 of 1994 and in view of the pendency of the appeal, the punishment need not be imposed on him. However, by order dated 01.12.1999, the petitioner was removed from service. Challenging the same, the petitioner filed appeal before the first respondent. The appeal was also rejected by the first respondent by order dated 27.11.2000 according to the counter affidavit filed by the respondents. 4. The contention raised by the petitioner before the Tribunal was that in view of the pendency of the criminal appeal, he cannot be removed from service and the conviction by the trial court had nothing to do with the employment and the hospital and no enquiry was conducted in terms of the penalty imposed on him. 5. On notice from the Tribunal, the second respondent has filed a counter affidavit dated 24.07.2001. In view of the abolition of the Tribunal, the matter stood transferred to this Court and renumbered as W.P.No.45174 of 2006. 6. The contentions raised by the petitioner are no longer res integra. In identical circumstances, the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras Vs. S.Nagoor Meera reported in 1995 (3) SCC 377, in paragraphs 8 to 10 held as follows:- "8. We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has led to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal. 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, https://hcservices.ecourts.gov.in/hcservices/ as the case may be. If, however, the government servant- accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the action under clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Dass V. Union of India (SCC p.362 para 7) "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 clause (a) of the second proviso to Article 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." 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellant or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice". 7. In view of the above judgment, there was no impediment for the respondents to impose penalty on the petitioner. Since removal of service is beyond the power under Article 311 (2) (a) of the Constitution, the question of grant of any notice will not arise. Though in the present case, the respondents have given notice before imposition of penalty, the Supreme Court in such circumstances, dealing with an order passed under Article 311 (2) (a) in the case of Union of India Vs. Tulsi Ram Patel reported in 1985 (3) SCC 398 has https://hcservices.ecourts.gov.in/hcservices/ held that the power under Article 311(2)(a) is not circumscribed by any rule framed by the Government under Article 309. In such circumstances, when a penalty is imposed by the competent authority, even without notice, the remedy available to the petitioner is to file appeal and convince the appellate authority regarding appropriate proportion of the punishment. In the present case, the appellate authority is not convinced. The contention raised is that it does not stand the scrutiny of law. 8. However, when the matter came up, Mr.S.Shanmugasundaram, learned counsel for the petitioner submits that subsequent to the filing of the O.A., a Division Bench of this Court had delivered its judgment on 09.07.2002 and in paragraph 10 of the said judgment, the conviction of the petitioner under Section 302 read with 34 IPC was altered to one under Section 326 IPC and also the sentence undergone by him was directed to be set off as penalty for the altered offence. A copy of the said judgment is also produced before this Court. 9. The fact that the criminal appeal is disposed of is not disputed by the learned Government Advocate appearing for the respondents. However, in the counter affidavit filed by the second respondent – Dean, Stanley Hospital, it was contended that they are well within their rights to impose penalty and the petitioner was not entitled for any remedy. 10. This Court is not inclined to accept the same. The Supreme Court in Union of India Vs. Paramananda reported in AIR 1989 SC page 1185 has held that in case of penalty under Article 311 (2) (a) since, there is no hearing provided, the Tribunal or the High Court can invoke extraordinary jurisdiction under Article 226 of the Constitution of India and alter the penalty in the given case. 11. But, in the present case, the petitioner had not sent any further appeal to the State Government, which ultimately has power to decide the penalty. The fact that the petitioner's conviction under Section 302 read with 34 IPC also altered to 326 IPC and also the sentence was reduced to the period of imprisonment, which was undergone by him, which is not within the knowledge of the respondents including the State Government, which is ultimately, the appointing authority. 12. Under these circumstances, though the petitioner's relief cannot be granted by this Court and the stand of the respondents in consonance with the judgment rendered by the Supreme Court referred to above, yet this does not preclude the petitioner from filing further appeal to the State Government by bringing to their knowledge of the subsequent developments and seek for modification of the penalty of the Division Bench, which had become final. https://hcservices.ecourts.gov.in/hcservices/ 13. While the writ petition is dismissed on the ground stated above, the petitioner is at liberty to file appeal to the State Government viz., the Secretary to the Government (Health and Family Wefare Department) with all the supporting documents and if any said appeal is filed within four weeks from today, the State Government shall consider the same in accordance with law and pass appropriate orders and communicate the same to the petitioner within eight weeks from the date on which, the appeal is received by the State Government. 14. The writ petition is dismissed with the above direction. No costs. A copy of this order is directed to be despatched to the Secretary, Health and Family Welfare Department, Government of Tamil Nadu, Fort.St.,George, Chennai-600 009. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nvsri To 1.The Director of Medical Education Kilpauk Medical College Campus Chennai-600 010 2.The Dean, Government Stanley Hospital Chennai-600 001 3. The Secretary Health and Family Welfare Department Government of Tamil Nadu, Fort St. George, Chennai.-9. + 1 cc to Mr.S. Senthilnathan, Advocate sR.88416 + 1 cc to the Government Pleader Sr.88617 W.P.No.45174 of 2006 (O.A.No.7094 of 2000) JGR(CO) EU 27.12.10 https://hcservices.ecourts.gov.in/hcservices/