Rajasthan High Court - Jodhpur
Shamsher Khan. vs . State Of Rajasthan & Ors. on 16 July, 2015
Author: Sandeep Mehta
Bench: Sandeep Mehta
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S.B.CIVIL WRIT PETITION NO.5747/2015
Shamsher Khan. Vs. State of Rajasthan & Ors.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
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ORDER
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S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
Date of order : 16th July, 2015 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr.Sandeep Shah & Mr.Rajesh Parihar, for the petitioner.
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Reportable
1. Heard and perused the material available on record.
2. By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order Annex.4 dated 31.3.2015 whereby, the petitioner was dismissed from service on the ground of his conviction in a criminal case involving offences under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988.
3. The petitioner was working on the post of Helper 2 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. at Pump House in P.H.E.D. He was trapped red handed by the officials of Anti Corruption Bureau on 28.1.2008 while accepting a bribe of Rs.800/-. After investigation, a charge- sheet was filed against the petitioner for the offences under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The Special Judge, ACD Court, Jodhpur tried the petitioner and vide judgment dated 7.1.2015, convicted and sentenced him for the aforesaid offences. The appeal preferred by the petitioner against the said judgment being S.B. Criminal Appeal No.105/2015 has been admitted by this Court and the sentences awarded to the petitioner were suspended by order dated 3.2.2015. The Chief Engineer of the respondent department passed the order Annex.4 dated 31.3.2015 whereby, the petitioner was dismissed from service considering the fact of the petitioner's conviction to be a justifiable reason. The legality and validity of the above order is assailed in the instant writ petition.
4. Learned counsel for the petitioner vehemently contended that the impugned order is absolutely illegal, arbitrary and unjust and thus, deserves to be set aside. He stressed upon the fact that as per the language of Rule 19 of the CCA Rules, the disciplinary authority was required to 3 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. objectively and exhaustively consider the conduct leading to the employee's conviction before his services could be terminated by resorting to the said provision which provides for an exceptional mode of termination without holding any inquiry. He urged that a mere mechanical reference to the fact of conviction would not satisfy the requirements of the Section. As per him, upon a bare perusal of the judgment whereby, the petitioner was convicted, it is apparent that the petitioner's conviction was not such which required the harshest penalty of dismissal from service. He relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Tulsiram Patel reported in AIR 1985 SC 1416 and this Court's judgment in the case of Likhma Ram. Vs. State of Rajasthan & Ors. reported in RLW 2011(4) Raj.2812 in support of his arguments and urged that the impugned order is grossly illegal and perverse and thus, deserves to be quashed and set aside.
5. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the impugned order as well as the provisions of the Rules and the judgment cited at the Bar.
6. Rule 19(1) of the CCA Rules, resorting whereto, 4 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. the impugned order was passed, reads as below :-
"19. Special procedure in certain cases.- Notwithstanding anything contained in rules 16, 17 and 18,
(i) where a penalty is imposed on a Government Servant on the ground of conduct which has led to him conviction on a criminal charge; or
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or
(iii) Where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit.
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary."
7. As per the plain language of Rule 19, in case where a Government servant is convicted of an offence and the disciplinary authority is of the view that the conduct of the Government employee which led to his conviction is such that it is warranted to impose any of the three penalties mentioned in the Rule viz. dismissal, removal or reduction in rank and where the disciplinary authority is 5 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. satisfied that it is not reasonably practicable to follow the procedure of Rules 16, 17 and 18 of the CCA Rules, 1958, then the authority may consider the circumstances of the case and pass such orders as it deems fit. Sub-rule (1) of Rule 19 provides that the conduct which led to the conviction of the employee on a criminal charge should be considered before passing an order under this rule.
8. The question which thus falls for consideration of this Court's appreciation is as to what should be the extent of consideration of the employee's conduct as per Rule 19 (1) of the CCA Rules which can be considered sufficient before passing an order of termination under the Rule. The examination as warranted in Rule cannot be confined to a straight jacket formula. This Court is of the firm opinion that if the disciplinary authority takes a conscious decision in the matter keeping in view the nature of the offences for which the employee is convicted, it can be said to be an objective and conscious application of mind to the employee's conduct as required by Rule 19. The very fact that a Government servant is convicted for an offence of corruption would by itself lead to an inference that his conduct is such which disentitles him from holding a civil 6 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. post.
9. In case of Tulsiram Patel (supra) relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court held as below :-
"152. The second ground upon which the High Court rested its decision is equally unsustainable. The circumstances which were taken into consideration by the disciplinary authority have been sufficiently set out in the order of compu1sory retirement, they. being that the Respondent's conviction under section 332 of the Indian Penal Code and the nature of the offence committed which led the disciplinary authority to the conclusion that the further retention of the Respondent in the public service was undesirable. The mention of section 332 of the Indian Penal Code in the said order itself show's that Respondent was himself a public servant and had voluntarily caused hurt to another public servant in the discharge of his duty as such public consequence of an act done by that person in the lawful discharge of his duty. The facts here are eloquent and speak for themselves. The Respondent had gone to the office of his superior officer and had hit him on the head with an iron rod. It was fortunate that the skull of Raj Kumar was not fractured otherwise the offence committed would have been the more serious one under section 333.The Respondent was lucky in being dealt with leniently by the Magistrate but these facts clearly show that his 7 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
retention in public service was undesirable. In fact; the conduct of the Respondent was such that he merited the penalty of dismissal from government service and it is clear that by imposing upon him only the penalty. of compulsory retirement, the disciplinary authority had in his mind the fact that the Magistrate had released him on probation. We accordingly hold that clause (i) of Rule 19 of the Civil Services Rules was rightly applied to the case of the Respondent."
From afore quoted judgment observations made by the Hon'ble Apex Court in Tulsi Ram Patel's case, it is evident that the Court was of the view that the mention made by the disciplinary authority in the order of compulsory retirement about the employee's conviction for the offence under Section 332 I.P.C. and the nature of offence committed was sufficient indication of proper application of mind to the facts of the case. The order was held to be eloquent and self speaking. The Hon'ble Apex Court went to the extent of saying that the conduct of the employee (who had been convicted for the offence under Section 332 I.P.C.) merited penalty of dismissal from Government service and by imposing upon him, only the consequence of compulsory retirement, the disciplinary authority had acted leniently. In this background, the said 8 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. judgment also is of no help to the petitioner.
10. The same is the position in the case at hand. The disciplinary authority, before resorting to the provisions of Rule 19 of the CCA Rules and Article 311(2) of the Constitution of India considered the fact that the petitioner being a public servant was convicted for an offence of corruption and as such, it was not desirable to continue him in service. The fact that the authority considered the judgment of conviction and the provisions of law for the infringement whereof, the petitioner was convicted and so also, the sentences passed against him and quoted them in extenso in the impugned order is itself indicative that the authority objectively considered and quoted eloquently the conduct which led to the petitioner's conviction in the impugned order.
11. In the case of Likhma Ram (supra) relied upon by the learned counsel for the petitioner, the Court examined a situation where the employee concerned had been convicted for the offences punishable under Sections 324, 325/34 and 341 I.P.C. The employee therein was dismissed in reference to Rule 19 of the CCA Rules, 1958. This Court upon going through the pleadings of the parties 9 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. came to a conclusion that the order impugned was passed ipse-dixit on conviction of the petitioner. The Court further observed that the thrust of the existing provisions is to satisfy the doctrine of reasonable opportunity in absolute, even in the cases where the regular inquiry is dispensed with. It was further observed that a Government servant may suffer conviction of a criminal charge and such criminal charge may be or may not be having any bearing to the conduct that is necessary to discharge the duties relating to service. A conviction may be there for very minor offence relation to violation of traffic rules or minor taxation provisions or some anti pollution provisions or on any other similar type of provision, but in normal course such conviction may not demand any punishment. In that background, the Court was convinced that the disciplinary authority did not record appropriate circumstances in the order which was thereafter quashed.
In the opinion of this Court, such is not the situation in the case at hand. Herein, the petitioner was convicted for the offences punishable under the Prevention of Corruption Act which have a direct nexus to the discharge of duties by the petitioner while he was in service. As such, 10 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. the impugned order passed after giving due consideration to the provisions of law for infringement whereof the petitioner was convicted, was a sufficient consideration of the conduct leading to his conviction.
12. Upon having examined the judgment of the trial court Annex.1 dated 7.1.2015, it is evident that the telephonic conversation which the prosecution relied upon against the petitioner is distinctly indicative of the fact that the petitioner's voice was recorded during the trap proceeding wherein he is heard demanding bribe from the complainant. Furthermore, the petitioner was apprehended red handed with the trap money and his hands were found tainted with phenolphthalein. As such, in this Court's opinion, there was ample material on record to conclude the petitioner's complicity in the crime of demanding and accepting illegal gratification. In this background, the disciplinary authority was absolutely justified in discontinuing the petitioner from service.
13. The issue regarding the right of a Government servant convicted for the offence under the Prevention of Corruption Act to continue in service was examined in extenso by the Hon'ble Supreme Court in the case of K.C. 11 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. Sareen vs. C.B.I., Chandigarh reported in AIR 2001 SC 3320. It was observed:-
"11. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a Court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior Court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When 'a 12 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence, it is necessary that the Court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a Court order suspending the conviction.
12. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate Court or the revisional Court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of 13 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.
13. We are fortified in holding so by two other decisions of this Court. One is Deputy Director of Collegiate Education v. S. Nagoor Meera (1995) 3 SCC
377. The following observations of this Court are apposite now.
"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."
14. Examining a similar controversy in the case of Municipal Committee, Bahadurgarh vs. Krishnan Behari reported in AIR 1996 SC 1249, the Hon'ble Supreme Court observed as below :-
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S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
"2. The respondent was a clerk in the Municipality. He was alleged to have misappropriated a sum of Rs. 1548.78 p. by falsifying the accounts. He was prosecuted in a criminal case and convicted under Section 409 of the Indian Penal Code and sentenced. On appeal, the conviction was altered from Section 409 to Section 468 of the Indian Penal Code. Sections 468 reads;
"Whoever commits forgery intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine."
3. In view of the said punishment, the Municipal Committee dismissed the respondent. The respondent filed an appeal before the Director of Local Bodies who, while upholding the correctness of the action, reduced the punishment to stoppage of four increments and has also directed that the period during which the respondent was out of service should be treated as extraordinary leave. An appeal filed by the Municipal Committee to the Commissioner was dismissed as incompetent. A writ petition filed by the Municipal Committee was also dismissed in limine by the High Court.
4. It is obvious that the respondent has been convicted of a serious crime and it is a clear case attracting under Proviso (a) to Article 311 (2) of the Constitution. In a case of such nature - indeed, in 15 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. cases involving corruption - there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. The Director had interfered with the punishment under a total misapprehension of the relevant factors to be borne in mind in such a case. (Emphasis supplied)
5. Accordingly, this appeal is allowed. Judgments of the High Court. Commissioner and the Director are set aside and the order of the Municipal Committee dismissing the respondent is restored."
15. In the case of Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera reported in AIR 1995 SC 1364, the Hon'ble Supreme Court held as below :-
"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 16 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
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 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 17 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors.
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 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." (Emphasis supplied) In view of the ratio of the above quoted Supreme Court decisions, it is evident that a public servant having been convicted for the offence of corruption, has no right to continue on the civil post.
16. As an upshot of the above discussion, this Court is of the firm opinion that the impugned order does not suffer from any illegality, irregularity or perversity so as to call for any interference in the instant writ petition.
17. Consequently, the instant writ petition, being 18 S.B.CIVIL WRIT PETITION NO.5747/2015 Shamsher Khan. Vs. State of Rajasthan & Ors. devoid of any merits, is hereby dismissed.
18. Stay petition also stands dismissed.
19. No order as to cost.
(SANDEEP MEHTA), J.
/S.Phophaliya/