Jharkhand High Court
Siyamani Devi vs The State Of Jharkhand Through ... on 4 August, 2021
Equivalent citations: AIRONLINE 2021 JHA 1115
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 197 of 2016
Siyamani Devi, wife of Late Nawal Kishore Sharma, Resident of -
Cooperative Colony, Bartand, Dhanbad.
... PETITIONER
Vs.
1. The State of Jharkhand through Secretary/Principal Secretary, School
Education and Literacy Department, Government of Jharkhand,
Ranchi.
2. The Director, Primary Education, Primary Education Directorate,
MDI Building, Dhurwa, Ranchi
3. The Deputy Commissioner-cum-Chairman, District Establishment
Education Committee, Dhanbad.
4. The District Superintendent of Education, Dhanbad.
... ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK (Through : Video Conferencing) For the Petitioner : Mr. Manoj Tandon, Advocate.
For the State Mr. Shadab Bin Haque, AC to SC
C.A.V. On 28.06.2021 Pronounced on 04.08.2021
Dr. S.N. Pathak, J. In view of outbreak of COVID-19 pandemic, case was taken up
through Video Conferencing. Concerned lawyers had no objection with regard to the proceeding which was held through Video Conferencing and there was no complaint in respect to audio and video clarity and quality and after hearing at length, the matter was reserved for Judgment on 28.06.2021 and the same is being disposed of finally.
PRAYER
2. In the instant writ application prayer has been made for issuance of appropriate writ(s), order(s) or direction(s) in the nature of Certiorari for quashing the office order as contained in Memo No. 4533, dated 29.10.2015, passed by the District Superintendent of Education (Respondent No. 4), whereby petitioner has been dismissed from service with retrospective effect from 27.06.2014. Petitioner has further prayed for a direction upon the respondents to reinstate him in service with full back wages.
RC 2 FACTUAL MATRIX
3. Facts of the case lies in a narrow compass. Petitioner was appointed as an Assistant Teacher in the district of Dhanbad on 06.07.1988. There was no complaint from any corner against the petitioner and she discharged her duties diligently and to the satisfaction of all. After rendering 26 years of service, petitioner was convicted vide Judgment dated 27.06.2014, passed in G.R. No. 2883 of 2001 [T.R. No. 35 of 2014], for the offence under Section 498-A/34 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment of two and half years and to pay fine of Rs.10,000/-. A memo of charge was framed against the petitioner vide memo no. 980, dated 01.04.2015. Thereafter, petitioner was dismissed from the service vide office order as contained in Memo No. 4533, dated 29.10.2015 with retrospective effect from 27.06.2014. Being aggrieved with harsh order of dismissal from retrospective effect, petitioner has knocked door of this Court.
ARGUMENTS ON BEHALF OF THE PETITIONER
4. Mr. Manoj Tandon, learned counsel appearing for the petitioner submitted that petitioner had a long unblemished service career and she was never put in custody even for a single day. During the trial and even after her conviction, petitioner was on bail. Learned counsel further submitted that order of dismissal is solely based on conviction under Section 498-A of the Indian Penal Code. This is a peculiar case where though petitioner is merely Gotni (wife of Bhaisur) of the complainant but has been convicted in the case. Learned counsel further submitted that conviction of the petitioner has no nexus with discharging of her duty as a Teacher and as such dismissal from service merely on the ground of conviction is not at all justified and needs interference. Petitioner has rendered 26 long years of pensionable service and at this stage punishment of dismissal from the service is too harsh. Petitioner is a widow and has a marriageable daughter. Learned counsel further argued that there is no provision under the law that if a person is convicted in a criminal case, he/she may be dismissed from the service and as such, there is no ground to dismiss petitioner from the service. Learned counsel further argued that RC 3 even under the Bihar (Now Jharkhand) State Primary Teachers (Transfer and Disciplinary Proceeding) Rules, 1994, there is no provision that if a teacher is convicted in a criminal case, dismissal is the only punishment to be awarded. Learned counsel further argued that impugned order has been passed with retrospective effect, which is not at all sustainable in the eyes of law.
5. Relying upon the Judgment passed in the case of Harbanslal Sahnia v. Indian Oil Corpn. Ltd. reported in (2003) 2 SCC 107 at page 110, learned counsel submitted that it has been held by the Hon'ble Court that suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction.
6. To buttress his arguments, learned Counsel has relied upon the following Judgments:
i. Shankar Dass Vs. Union of India and another reported in (1985) 2 SCC 358 ii. Chairman, Food Corporation of India and others Vs. Sudarsan Das reported in 920070 14 SCC 766.
iii. Harbanslal Sahnia v. Indian Oil Corpn. Ltd. reported in (2003) 2 SCC 107 at page 110 ARGUMENTS ON BEHALF OF THE RESPONDENTS
7. Per contra counter affidavit has been filed.
8. Mr. Shadab Bin Haque, learned Counsel appearing on behalf of the respondents - State strenuously urged that a Government servant who has been convicted and sentenced in a criminal case, has no right to continue in the service. Admittedly, petitioner has been dismissed on the ground of conviction in criminal case and such persons have no right to continue in service. The law is well settled in this regard. When an employee has been convicted in a criminal case, unless and until he/she is acquitted, cannot be allowed to continue in service and even provisions of natural justice is not attracted in the case of convicted employee. Learned counsel emphatically argued that the Judgments relied upon by the RC 4 petitioner is not at all attracted in the instant case as the conviction is based on moral turpitude and not on flimsy grounds. The charges are grievous in nature and dismissal cannot be said to be whimsical. The writ petition has no merits and is fit to be dismissed.
Relying upon the Judgment passed by Hon'ble Supreme Court in the case of Deputy Directorate of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera reported in (1995) 3 SCC 377 learned counsel submitted that a Government servant who has been convicted by a competent criminal court, should not be retained in service unless the said conviction is not set aside in appeal or in other proceedings. Learned counsel further submitted that this Court vide order dated 06.04.2005, passed in W.P.(S) No. 1581 of 2005, has held that a convicted Government employee should be dismissed without any further enquiry or explanation or departmental proceeding and accordingly, service of the petitioner has been terminated in view of Judgment of conviction and order of sentence passed against her. Learned counsel further argued that instead of preferring representation or appeal, petitioner has directly approached this Court, which is also not permissible in the eyes of law. There is no illegality or any infirmity in the impugned order and the writ merits dismissal.
FINDINGS OF THE COURT
9. Be that as it may, having gone through rival submission of the parties across the bar, this Court is of the view that no interference is warranted in the instant writ petition for the following facts and reasons:
i. Admittedly petitioner has been dismissed on the ground of conviction in a criminal case. The conduct of the petitioner has been taken into consideration while passing the order of dismissal based on criminal charge. As per the settled principles of law, the petitioner can represent before the competent authority for consideration only after acquittal in the criminal case, which has to be considered in accordance with law based on gravity of charges. In the instant case, petitioner has neither preferred any appeal nor has represented before the authorities for reconsideration of her case for passing orders other than dismissal.
RC 5 ii. The issue fell for consideration before the Hon'ble Apex court in the case of Deputy Directorate of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera (Supra) and Their Lordships have clearly observed in para-7, 8 and 9 thereof as under:
"7. This clause, it is relevant to notice, speaks of "conduct which has led his conviction on a criminal charge". It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal "the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond". Section 389(1), it may be noted, speaks of suspending "the execution of the sentence or order", it does not expressly speak of suspension of conviction. Even so, it may be possible to say that in certain situations, the appellate court may also have the power to suspend the conviction -- an aspect dealt with recently in Rama Narang v. Ramesh Narang1. At pages 524 and 525, the position under Section 389 is stated thus: (SCC pp. 524-525, paras 15 and 16) "Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'order' in Section 389(1) mean order of conviction or an order similar to the one under Section 357 or Section 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities.
In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? ... If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions RC 6 attached thereto, it may have granted an order to that effect."
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, 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, RC 7 in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate 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."
iii. Similar view has been taken by this Court in the case of Shashibhushan Singh @ Shashi Singh Vs. State of Jharkhand in W.P.(S) No. 1581 of 2005 wherein in a case of conviction passed under Sections 304-B, 498A/34 of the Indian Penal Code, the Court observed as under:
"In my opinion no inquiry or show-cause notice or departmental proceeding is necessary or contemplated for dismissal of a convict in a criminal case. If the petitioner is acquitted in criminal appeal filed by him, he shall have right to make representation to the authorities. Question of application of provision of Article 311 of the Constitution for giving second show-cause notice in such a case does not arise."
iv. In the case of Union of India v. Ramesh Kumar, (1997) 7 SCC 514 it has been held at paragraph-6 as under:
"6. A bare reading of Rule 19 shows that the disciplinary authority is empowered to take action against a government servant on the ground of misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the appellate court the order of dismissal based on conviction stands obliterated and the dismissed government servant has to be treated under suspension till disposal of appeal by the appellate court. The rules also do not provide the disciplinary authority to await disposal of the appeal by the appellate court filed by a government servant for taking action against him on the ground of misconduct which has led to his conviction by a competent court of law. Having regard to the provisions of the rules, the order dismissing the respondent from service on the ground of misconduct leading to his conviction by a competent court of law has not lost its sting merely because a criminal appeal was filed by the respondent against his conviction and the appellate court has suspended the execution of sentence and enlarged the respondent on bail. This matter may be examined from another angle. Under Section 389 of the Code of Criminal Procedure, the appellate court has power to suspend the execution of sentence and to release an accused on bail. When the appellate court suspends the execution of sentence, and grants bail to an accused the effect of the order is that the sentence based on conviction is for the time being postponed, or kept in abeyance during the pendency of the appeal. In other RC 8 words, by suspension of execution of sentence under Section 389 CrPC an accused avoids undergoing sentence pending criminal appeal. However, the conviction continues and is not obliterated and if the conviction is not obliterated, any action taken against a government servant on a misconduct which led to his conviction by the court of law does not lose its efficacy merely because the appellate court has suspended the execution of sentence. Such being the position of law, the Administrative Tribunal fell into error in holding that by suspension of execution of sentence by the appellate court, the order of dismissal passed against the respondent was liable to be quashed and the respondent is to be treated under suspension till the disposal of criminal appeal by the High Court."
v. The petitioner has placed heavy reliance on paragraph-7 of the Judgment passed in the case of Shankar Dass Vs. Union of India and another (Supra), the ratio of the said case is not attracted in the instant case and is of no help to the petitioner. Para-6 and 7 of the said Judgment reads as under:
"6. The learned Magistrate, First Class, Delhi, Shri Amba Prakash, was gifted with more than ordinary understanding of law. Indeed, he set an example worthy of emulation. Out of the total sum of Rs 1607.99 which was entrusted to the appellant as a cash clerk, he deposited Rs 1107.99 only in the Central Cash Section of the Delhi Milk Scheme. Undoubtedly, he was guilty of criminal breach of trust and the learned Magistrate had no option but to convict him for that offence. But, it is to be admired that as long back as in 1963, when Section 235 of the Code of Criminal Procedure was not on the statute book and later refinements in the norms of sentencing were not even in embryo, the learned Magistrate gave close and anxious attention to the sentence which, in the circumstances of the case, could be passed on the appellant. He says in his judgment: The appellant was a victim of adverse circumstances; his son died in February 1962, which was followed by another misfortune; his wife fell down from an upper storey and was seriously injured; it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months. The learned Magistrate concluded his judgment thus:
"Misfortune dogged the accused for about a year. . .and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of RC 9 Offenders Act, 1958."
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 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 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. 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."
In the aforesaid case, petitioner therein was convicted for parking his scooter in a no parking area. Admittedly, the Constitution does not contemplate that for such an act even if petitioner has been convicted, he should be dismissed from the service and certainly the dismissal was whimsical. The case is entirely different in the instant wit petition. The conduct of the petitioner was of such nature that it attracted dismissal order.
10. This Court is in full agreement and adopts the same view which has been laid down by the Hon'ble Apex Court in the case of Deputy Directorate of Collegiate Education (Administration), Madras (Supra). Viewed thus, the writ petition having no merits, is hereby dismissed. However, if the petitioner is acquitted in the criminal case on appeal, she will be at liberty to move the authorities for reconsideration of her case, which shall be considered in accordance with law.
11. The writ petition is accordingly dismissed.
(Dr. S.N. Pathak, J) RC