Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sita Ram Sharma on 11 March, 2019
1 WA-955-2018
The High Court Of Madhya Pradesh
WA-955-2018
(THE STATE OF MADHYA PRADESH Vs SITA RAM SHARMA)
Jabalpur, Dated : 11-03-2019
Shri Manish Kumar Verma, Government Advocate for the
appellants-State.
Shri Devendra Kumar Dixit, Advocate for the respondent.
Heard on I.A. No.8883/2018, which is an application for condonation of delay in filing of this intra-Court appeal.
As per office calculation, the appeal is barred by 249 days. For the reasons stated in the application, we find that good and sufficient cause is made out to condone the delay.
Accordingly, I.A. No.8883/2018 stands allowed and closed and the delay in filing the appeal is hereby condoned.
Also heard on the question of admission.
This intra-Court appeal is directed against the order dated 18th of August, 2017 passed by the learned Single Judge in Writ Petition No.8645/2016 (Sita Ram Sharma Vs. State of M.P. & Others).
By the order impugned, learned Single Judge has allowed the writ petition preferred by the respondent herein and quashed the order dated 07.04.2016 whereby the appellants rejected the representation of the respondent and maintained the order of dismissal from service.
Relevant facts, necessary for the disposal of this intra-Court appeal, are as under:-
On 21.04.2002, on account of previous family disputes relating to immovable property, an incident took place resulting in death of the son of the respondent. A criminal case under Section 302/34 of IPC was registered against the accused persons and a counter case for Digitally signed by ASHISH KUMAR JAIN Date: 14/03/2019 12:26:04
2 WA-955-2018 the offence punishable under Section 323/34 was registered against the respondent. Learned trial Judge, on the basis of evidence adduced by the prosecution, convicted the accused persons for offence punishable under Section 302 of IPC and in the counter case convicted the respondent herein for offence punishable under Sections 323 and 341 of IPC and sentenced him to undergo rigorous imprisonment for six months with a fine of Rs.1,000/- with default stipulations.
In view of the aforesaid judgment of the trial Court, exercising powers conferred by Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, the respondent herein was dismissed from service by order dated 19.11.2014. The respondent herein challenged the order of dismissal in Writ Petition No.19007/2014. The said writ petition was disposed of on 30.09.2015 with the direction to consider the matter whether the offence proved against the respondent involved moral turpitude, therefore, the continuance of respondent in service was not desirable.
In the light of the order passed by this Court, respondent herein submitted a representation wherein it was specially pointed out that the conviction of the respondent did not involve any moral turpitude and prayed that he be reinstated in service.
As has been stated hereinabove, by the order dated 07.04.2016, the representation of the respondent was rejected and the order of dismissal from service was maintained.
We have heard rival submissions at length and perused the material available on record. In our considered opinion, learned Single Judge committed no error while allowing the writ petition of Digitally signed by ASHISH KUMAR JAIN Date: 14/03/2019 12:26:04 3 WA-955-2018 the respondent herein by the order impugned.
Article 311(2)(a) of the Constitution of India provides for dismissal or removal or reduction in rank on the ground of conduct which has led to conviction of a government servant on a criminal charge.
This provision is an enabling provision and has come up for consideration in the case of Union of India Vs. Tulsiram Patel reported in AIR 1985 SC 1416. This enabling provision does not enjoin the disciplinary authority to impose the extreme penalty of dismissal in the case of conviction. This has been explained in a subsequent decision of the Supreme Court in the case of State of M.P. and others Vs. Hazarilal reported in AIR 2008 SC 1300. The Supreme Court was considering Rule 19 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 which has para materia with the enabling provision contained in Article 311 of the Constitution of India and it was held by their Lordships' in para 8 of the judgment as under:-
"8. An authority which is conferred with a statutory discretionary power is bound to take 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 reasonable and fairly."
It was further held in the case of Shankar Das Vs. Union of India and Another reported in AIR 1985 SC 772, in para 7 of the judgment as under:-
"7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty Digitally signed by ASHISH KUMAR JAIN Date: 14/03/2019 12:26:04
4 WA-955-2018 which could appropriately be imposed upon him insofar as his service career was concerned. 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 provision 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. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical."
After going through the decisions, we are of the considered opinion that appellants did not consider the matter in the light of the law laid down by the Supreme Court whether the conduct, which has led to the conviction of the respondent on a criminal charge, the appellants did not exercise the powers fairly, justly and reasonably. The appellants failed to consider that the extreme penalty of the dismissal from service was an extreme step and, therefore, it was although necessary for appellants to consider the matter objectively whether the conduct, which led to conviction amounted to moral turpitude. In the earlier decision in writ petition filed by the respondent, this Court had directed the appellants to consider the matter in the above light and the appellants have failed to do so in Digitally signed by ASHISH KUMAR JAIN Date: 14/03/2019 12:26:04 5 WA-955-2018 dismissing the writ petition and maintaining the order of dismissal. Thus, we find no error or illegality with the order of the learned Single Judge. The intra-Court Appeal fails and is hereby dismissed.
Ordered Accordingly.
(S.K. SETH) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
@shish
Digitally signed by ASHISH KUMAR
JAIN
Date: 14/03/2019 12:26:04