Punjab-Haryana High Court
Anil Sandhir vs The State Of Punjab And Another on 30 November, 2012
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.23614 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.23614 of 2012
DATE OF DECISION: NOVEMBER 30, 2012
Anil Sandhir .......Petitioner
Versus
The State of Punjab and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.RK Chopra, Senior Advocate with
Ms.Maninder, Advocate for the petitioner.
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TEJINDER SINGH DHINDSA, J.
The challenge in the instant writ petition is to the order dated 20.11.2012, Annexure P8, whereby the penalty of dismissal from service has been imposed upon the petitioner while holding the post of Superintendent, Grade-II under the Education Department, State of Punjab.
2. The petitioner initially joined service with the respondent-Education Department as a Clerk on 20.10.1976. Upon qualifying the Assistant Grade examination, the petitioner was promoted as Senior Assistant on 13.12.1985. The petitioner CIVIL WRIT PETITION NO.23614 of 2012 2 was thereafter promoted to the post of Superintendent, Grade-II w.e.f. 24.7.1995.
3. In pursuance to criminal proceedings having been initiated on account of registration of FIR No.172 dated 23.7.2007, registered at Police Station City Rajpura, the petitioner was convicted in terms of judgment dated 15.5.2011 passed by the Sub Divisional Judicial Magistrate, Rajpura under Sections 170,419 read with Section 120-B as also Section 471 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for a period of one year. It is in terms of invoking proviso to sub Clause (a) Article 311 of the Constitution of India that the impugned order dated 20.11.2012 has been passed.
4. Learned Senior Counsel appearing for the petitioner has vehemently argued that conviction in a criminal offence per se would not entail automatic dismissal and it was the conduct of the petitioner leading to his conviction that was required to be considered by the competent authority. Learned senior counsel would, accordingly, urge that the impugned order is unsustainable in law as it suffers from a total non-application of mind. Towards such assertion, reliance has been placed upon the judgment of the Hon'ble Supreme Court of India in Union of India v. Tulsi Ram Patel, 1985(2) SLR 576. Reliance has also been placed upon a judgment passed by this Court in Manmohan Singh v. State of Haryana and others, 2010(1) SCT 604. It has also been contended that prior to passing of the impugned order, no notice or opportunity of hearing had been granted to the petitioner.
5. Having heard learned senior counsel at length, I find CIVIL WRIT PETITION NO.23614 of 2012 3 that the present writ petition is wholly devoid of merit.
6. Clause (a) of proviso Second to Article 311 (2) exempts the application of Article 311 clauses (1) and (2), where a person is dismissed, removed or reduced in rank on a ground of conduct which has led to his conviction on a criminal charge. In Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, (1995) 3, SCC 377, it has been held as under:-
"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, 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 CIVIL WRIT PETITION NO.23614 of 2012 4 Shankardass v. Union of India (1985(2) SCR 358). "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."
7. The competent authority while passing the order of dismissal dated 20.11.2012 has specifically taken note of the conduct of the petitioner which led to his conviction. Relevant extract of the impugned order reads in the following terms:
"F.I.R.No.172, dated 23.7.2007, under Sections 419,420,465,471,170,120-B I.P.C., was registered against Shri Anil Sandhir, Superintendent Grade-2, Office of District Education Officer (S.E.) Ludhiana (now S.C.D. Government College, Ludhiana) in Police Station, Rajpura City. This case was registered against Deepak Kumar alias Rinku, son of Shri Raj Kumar, resident of Jagadhri and others, on the basis of secret CIVIL WRIT PETITION NO.23614 of 2012 5 information. In this complaint, it was alleged that Shri Anil Sandhir in collaboration with said accused presented himself to be P.A. To Shri Sukhbir Singh Badal, Smt.Surinder Kaur Badal, wife of Shri Parkash Singh Badal, Chief Minister,Punjab has got made transfers of various teachers and also arranged to get his wife Smt.Sudesh Rani, who is working as Mistress, transferred on the basis of wrong (false) telephone messages.
As per report received, vide D.P.I. (S.E.) memo No.5/136/2007 O.A.(1) 3251, dated 05.10.2011, punishment of one year imprisonment and fine of Rs.200/- was awarded to Shri Anil Sandhir by Dr.Gopal Arora, P.C.S. Sub Division, Judicial Magistrate, Rajpura, on 15.05.2012 under Section 170 I.P.C. in the aforesaid case. The operative part of which is as under:-
"16. I have heard the convict on the question of sentence. Convict have prayed for leniency as they are young persons and are the only bread winner of their families and are the first offenders. On the other hand, learned APP for the State argued that accused have committed heinous crime and do not deserve for any leniency. Since, these types of incidents are growing rapidly in the society and generally goes undeterred, therefore, if a lenient view is taken in such like heinous crime then it would give wrong signal to the society and would also encourage other such like persons. Consequently, keeping in view the nature of offence committed by the accused they are awarded the following CIVIL WRIT PETITION NO.23614 of 2012 6 sentences"
xx xx ACCUSED ANIL SANDHIR Under Sec.170 IPC To undergo Rigorous read with imprisonment for a period of Sec.120-B IPC one year and to pay fine of `200/-. In default of payment of fine to further undergo SI for one month.
Under Section 419 To undergo Rigorous IPC read with Imprisonment for a period of Sec.120-B IPC one year and to pay fine of `200/-. In default of payment of fine to further undergo SI for one month.
Under Section 471 To undergo Rigorous
IPC Imprisonment for a period of
one year and to pay fine of
`200/-. In default of payment of
fine to further undergo SI for
one month.
Fine paid. All the sentences shall run
concurrently. The period already undergone by the accused/convict during the trial of the case, if any be set off against their substantive sentence of imprisonment. Case property, if any be destroyed under rules after awaiting the result of appeal/revision if any. File be put up against accused Sartaj Singh and Kulbir Singh as and when they appeared or produced in the Court. Till then file be consigned to the record room". Pronounced in open court:
15.05.2012 Sd/-
(Dr.Gopal Arora) Sub Divisional Judicial Magistrate Rajpura.
As per the aforesaid orders of Hon'ble Court, Shri CIVIL WRIT PETITION NO.23614 of 2012 7 Anil Sandhir, Superintendent Grade-2, Office District Education Officer (S.E.) Ludhiana now S.C.D. Government College, Ludhiana has been sentenced to one year's imprisonment and a fine of `200/-. In case of default in payment of fine, he has to undergo an additional punishment of one month simple imprisonment. But since Shri Anil Sandhir has been awarded aforesaid punishment for the said crime by the Court after being found guilty, therefore in the light of the enquiry conducted by the department in this regard, there is no need to take any further action.
In view of the serious crime convicted by Shri Anil Sandhir, Superintendent Grade-2, Office District Education Officer (S.E.) Ludhiana now S.C.D. Government College, Ludhiana, and the punishment awarded by the Hon'ble Court and after thorough consideration of all aspects of the matter, I have come to the conclusion that it is not in the public interest to keep this officer in service. I, Ravneet Kaur, I.A.S., Secretary, Punjab Government Education Department (S) am competent to retain in or to remove from service. Therefore, I order to dismiss the services of Shri Anil Sandhir, Superintendent Grade-2, Office District Education Officer (S.E.) Ludhiana now CIVIL WRIT PETITION NO.23614 of 2012 8 S.C.D. Government College, Ludhiana, resident House No.2994, Phase-I, Dugri, Ludhiana with immediate effect, under proviso 2(A) Section 311 of the Constitution of India read with Punjab Civil Services (Punishment & Appeal) Rules, 1970. Keeping in view the charges levelled against the officer, he will not be paid anything except the pay and other allowances drawn by him during the period of suspension."
8. As such, the argument of Mr.RK Chopra, learned senior counsel that the conduct of the petitioner which has led to his conviction has not been considered by the competent authority is without any substance. In Sushil Kumar Singhal v. Regional Manager, Punjab National Bank, (2010) 8 SCC 573, it had been held as under:
"The law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction."
9. Admittedly, the petitioner stands convicted in an offence involving moral turpitude. There would be no scope for any leniency to be shown in such circumstances. I find no basis that would warrant interference in the impugned order dated 20.11.2012, Annexure P8. The writ petition, accordingly, lacks merit and is dismissed.
CIVIL WRIT PETITION NO.23614 of 2012 9
10. It is, however, clarified that since the impugned order of dismissal dated 20.11.2012 is based solely on an order of conviction, it would be open for the petitioner to avail the appropriate remedy strictly in accordance with law in the eventuality of his conviction being set aside.
11. Writ petition dismissed accordingly.
( TEJINDER SINGH DHINDSA )
NOVEMBER 30, 2012 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No