Gujarat High Court
P.D. Waghela And Ors. vs G.C. Raiger, Deputy I.G.P. And Ors. on 9 August, 1993
Equivalent citations: (1994)1GLR240
JUDGMENT S. Nainar Sundaram, C.J.
1. The question, we, as a Full Bench, are being called upon to dscide, rums on the interpretation that should be put on the expression conviction,' found in Clause (a) of the second proviso to Clause (2) of Article 311 of the Constitution of India. The question is Would the 'conviction' at the hands of a competent Criminal Court in the first instance suffice, or should the 'conviction' await confirmation at the hands of a final or ultimate competent Criminal Court? The placement of Clause (a) of the second proviso to Clause (2) of Article 311 will stand better appreciated if the entire Article 311, as it stands in the Statute Book, is extracted as follows:
311. (1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such personas aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this Clause shall not apply-
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on criminal charge; or
(b) where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that/ authority, in writing, it is not reasonably practicable to hold such inquiry, or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
2. We would be treading upon the familiar proposition that Article 311 does not, in any way, alter or affect the principle that a Government servant holds office at the pleasure of the President or the Governor, as the case may be, and Article 311 operates as restrictions on the otherwise unfettered powers of the President or the Governor, as the case may be, under Article 310, according to which every civil servant holds office during the pleasure of the President or the Governor, as the case may be. Article 311 subjects the exercise of that pleasure to the two conditions laid down in it. To put it in other words, the provisions of Article 311 operate as a proviso to Article 310(1) in relation to persons holding civil posts. The two conditions are:
(1) That such an employee shall not be dismissed or removed by an authority subordinate to that by which he was appointed:
And (2) That such an employee shall not be dismissed or removed in rank without any enquiry into the charges against him and without affording him an opportunity of showing cause against the action proposed to be taken in regard to him.
Familiar is also the proposition that a violation of Article 311(1) or Article 311(2) is a justiciable issue in a Court of law as the terms thereof are mandatory and not permissible, qualifying the provisions of Article 310, and providing a condition precedent for the exercise of power under Article 310. Any purported removal or dismissal from service of a civil servant without adhering to the prohibitory and mandatory provisions of Article 311(1) and Article 311(2) would be void and inoperative. Clause (a) of the second proviso to Clause (2) of Article 311 dispenses with the mandate adumbrated in Clause (2) of Article 311 with regard to holding of an enquiry, in which the civil servant has been informed of the charges against him and given a reasonable opportunity of being heard in respect of the said charges That is where the significance of Clause (a) of the second proviso to Clause (2) of Article 311 emerges lucidly. There could be dispensing with the mandate of Clause (2) of Article 311 by resort to Clause (a) of the second proviso to Clause (2) of Article 311 when "a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge". It must be remembered that Article 311, by itself, does not enumerate and catalogue the contingencies or heads of misconduct, in and for which there could be a dismissal or removal or reduction in rank of the servant. Such a power has got to be gleaned elsewhere and in most cases, in the rules governing the services. If the rules adopt the same language verbatim, as found in Clause (a) of the second proviso to Clause (2) of Article 311, what we are going to pronounce may hold good for them and not otherwise. Here, we must strike a note of caution that the language of the Rules governing the services could be couched in a manner different from the language of Clause (a) of the second proviso to Clause (2) of Article 311. In that case, the language of the rule will be decisive and govern. Only when there is a parity between the rule governing the services and Clause (a) of the second proviso to Clause (2) of Article 311, what we are expressing as our opinion will hold good. Presently, we will also notice decisions that have come to be rendered, expatiating and exemplifying the scope of Rules speaking different languages and we have not gone anywhere near such Rules governing the services concerned. We are only in the field of endeavoring to construe the expression 'conviction', found' in Clause (a) of the second proviso to Clause (2) of Article 311. If the exercise of the power is delineated plainly and unambiguously, as per language in which Clause (a) of the second proviso to Clause (2) of Article 311 is couched, that exercise of power need not be scuttled down by an inhibition not expressed by the language of the provision, saying that for the exercise of that power, it is necessary for the authority to Wait for the disposal of an appeal or revision, presented against the conviction to a higher forum.
3. In State of V.P. v. Mohammad Noor AIR 1958 SC 86, the significance of the original order remaining effective until it is reversed or modified, has been brought forth in the following passage:
...under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.
Though the Supreme Court was speaking with reference to a decree its say decisively guides the position in respect of orders of Court criminal or civil.
4. The references to a Full Bench were necessitated on account of the difficulty experienced in reconciling two lines of thinking, expressed in the pronouncements of this Court, one line, taking the view that conviction must have become final, and the other line, taking the view that conviction recorded by a competent Criminal Court, in the first instance, could be the basis for action and it is not necessary to wait till such conviction is ultimately confirmed in appeal or revision. The term 'conviction', occurring in Clause (a) of the second proviso to Clause (2) of Article 311 must be by a competent Criminal Court. One word more, such as 'final' or 'ultimate', is not there, qualifying the term 'conviction'. It is well settled that the Constitution deserves interpretation as any other Statute and the primary rule of interpretation of Statute law is that guidance should come from the plain language used. It is the say of Lord Wright in James v. Commonwealth of Australia, 1936 AC 578, that the rules, which apply to the interpretation of other Statutes, apply equally to the interpretation of a Constitutional enactment. This proposition has been adverted to in Mis. Goodyear India Ltd. v. State of Haryana and Anr. . It has been pointed out in Synthetics & Chemicals Ltd. v. State of U.P. and Ors. :
...It is important to emphasise that the expression in a Constitution must be u in its common and normal sense....
...The meaning of the expression used in the Constitution must be found from the language used....
Plain language guiding, there is no other go but to hold that 'conviction', spoken to in Clause (a) of second proviso to Clause (2) of Article 311, is arrived at when that is recorded by a competent Criminal Court, in the first instance, and the pending of an appeal or revision against such conviction will not alter the position.
5. The above view of ours has already found expression in pronouncements rendered at the level of High Courts, including this Court also. In A.B. Culvert and Anr. v. The General Manager, S.E. Riy. and Anr. , a learned single Judge of that High Court had occasion to consider Rule 1719(1) of the Railway Establishment Code, the language of which was same as Article 311(2) second proviso (a), and the learned single Judge opined that the disciplinary authority will be fully entitled to dismiss a person on conviction by a Criminal Court, despite an appeal against such conviction pending. In T.R. Subbaraman and Ors. v. State by Inspector of Police and Anr. 1970 Lab.IC 1246, a learned single Judge of the High Court of Madras had occasion to construe Clause (a) of the second proviso to Clause (2) of Article 311. The question posed and the discussion on it, are found in paragraph 7 of the pronouncement as follows:
...The question now raised is whether the word conviction' which occurs in proviso (a) refers to conviction only by a trial Court or whether it should be taken as a conviction confirmed by the Appellate Court or the Court of revision, as the case may be. It is contended that the authorities can take action contemplated under Clause (2) of Article 311 only after all the proceedings are terminated by way of appeal or revision in respect of a conviction. In other words, it is stated that the authorities should wait to take action under the said Clause till all the proceedings are terminated. There is no substance in this contention. The conviction referred to in proviso (a) is a conviction recorded by a competent Court of law on a criminal charge. The trial Court trying a person on a criminal charge is competent to record a conviction if the charge is proved. Once a conviction is recorded by a competent Court, it becomes final unless the statutory remedies provided to the person convicted are taken by him and such convictions set aside.
"Conviction" begins to operate as soon as it is recorded. It subsists till it is set aside by an Appellate Court or a Court of revision. What is contemplated in Proviso (a) to Article 11(2) is a subsisting conviction or a conviction in force. In an appeal or a revision against a conviction, the conviction is not suspended. It is only the sentence or order in consequence of such conviction is suspended. Even when an appeal or revision is pending, the conviction is alive and it does not cause to exist. Under Section 426(1), Criminal Procedure Code, the Appellate Court may suspend the execution of the sentence or order pending an appeal against a conviction. Similarly, under Section 438, Criminal Procedure Code, the Sessions Judge or District Magistrate, while exercising the powers of revision and while a report of recommendation for reduction or altci alien of sentence or order is made to the High Court, can suspend llie execution of sentence or order, as the case may be. It is clear from these provisions that the conviction is not suspended while the appeal or revision is pending. I am, therefore, of the view that once the conviction is recorded by a competent Court of law on a criminal charge end until such conviction is set aside either on appeal or revision, such conviction remains effective and can be made the basis of dismissal removal or reduction in rank of a public servant....
6. In M.G. Anand, Inspector of Central Excise, Nadiad (Under suspension) v. Union of India and Anr. Special Civil Application No. 378 of 1984, disposed of along with Special Civil Application No. 47 of 1984, on 13-2-1984, a learned single Judge of this Court, opined that there could be no bar to the Disciplinary Authority taking action on the basis of the conviction even though the conviction is sub judice in appeal. The above pronouncement has been affirmed by a Bench of this Court in L.P.A. No. 119 of 1984 and the view of the Bench has been expressed in the following terms:
...Under these circumstances, on a plain reading of the proviso to Article 311(2), in our view, the conviction by a competent Criminal Court in the first instance would be sufficient to invoke the said proviso and to cloth the departmental authorities with power to dispense with the procedure of Article 311(2) in such cases. Consequently, no fault can be found with the decision rendered by the learned single Judge....
7. In Jarnail Singh v. State of Punjab and Anr. 1981 Lab.IC (NOC) 145, a Bench of the High Court of Punjab and Haryana categorically opined that after a delinquent servant is convicted on a criminal charge, he shall be taken to be a convict and the conviction does not cease to exist as a result of the appeal filed by him against the order of conviction and disciplinary action, without inquiry, by invoking Clause (a) of the second proviso to Clause (2) of Article 311, on the ground of conduct, which has led to his conviction on a criminal charge, would be justified even during the pendency of an appeal against conviction.
8. There was an endeavour on the party of Mr. T.S. Nanavati, learned Counsel appearing on behalf of the petitioners in the Special Civil Applications, and Mi. Ajit D. Padival, learned Counsel appearing for the respondent in the Letters Patent Appeal, to make us accept a proposition that Clause (a) of the second proviso to Clause (2) of Article 311 could be invoked only in those cases, where the conviction has become final and it would not be attracted in cases, where the conviction is under challenge in appeal and the appeal is still pending. Except for a solitary reported pronouncement of a learned single Judge of the High Court of Rajasthan, to which we shall presently advert to, we have not been put on notice of any other reported case speaking to that effect. Yet, we are obliged to refer to the other pronouncements, which the learned Counsel banked upon in suppoit of their pleas. We find that these pronouncements are entirely on a different theme and they have only countenanced the position that when the conviction is reversed in appeal or revision, the conviction becomes non est from the inception and in that contingency, the action dispensing with Clause (2) of Article 311 will have to fall down. Here itself, we must take the position clear that we are not deciding and pronourcing upon the question as to what will be the fate of the dismissal based on a conviction when that conviction is reversed either in appeal or revision by the higher forum. In passing, we may have to notice that there is unanimity of the opinion that when such is the contingency presented, a reversal process must necessarily follow, treating the conviction as non est and the non-compliance with Clause (2) of Article 311 as vitiating the whole process, since dispensing with Clause (2) of Article 311 could happen only under the cover of Clause (a) to the second proviso thereto on the basis of a conviction. When the conviction evaporates, on the same getting reversed in appeal or revision, the very basis, which enabled the disciplinary authority to dispense with Clause (2) of Article 311, is taken away from the inception and the action must fall to the ground.
9. Now, adverting to the other pronouncements, in Dilbagh Rai Jarry v. The Divisional Superintendent, Northern Riy. and Ors. AIR 1959 Punjab 401, a learned single Judge of the High Court of Punjab, dealt with a case, the facts of which, briefly stated, ran as follows:
On 29-12-1955, the servant was convicted for an offence under Section 509 Indian Penal Code. An appeal by the servant failed. A Revision by the servant also failed. On 31-3-1956, after the appeal and the revision failed, the servant was dismissed from service on the basis of his conviction. On 7-3-1957, on special leave being granted by the Supreme Court, the appeal of the servant was allowed and the conviction recorded against him was quashed. The servant wanted reinstatement. After referring to Clause (a) of the concerned proviso to Clause (2) of Article 311, the learned single Judge held as follows:
... Now the aforesaid proviso, becomes applicable only if a person has been convicted on a criminal charge. Conviction here can have only one meaning, namely, that the person must have been convicted finally. In other words, if a person is acquitted by a Court of appeal, then it cannot be said that there is any conviction in the sense in which it is used in the aforesaid provision. In the present case the petitioner had been acquitted by the highest Court of the land. It could not possibly be said that his case fell within the aforesaid proviso. He was, therefore, fully entitled to the protection guaranteed by Article 311.
10. In R.S. Das, sfo. Kamta Prasad v. Divisional Superintendent, Allahabad ATR 1960 Allahabad 538, a learned single Judge of the High Court of Allahabad dealt with a case, where the dismissal occurred on conviction by the first Court and, on appeal, the conviction was reversed and the servant was acquitted and the servant demanded reinstatement and in that contingency, it was opined that by the learned single Judge of the High Court of Allahabad that the very foundation on which the disciplinary order was based has fallen and when the foundation should disappear, the edifice must also necessarily go.
11. In The Divisional Superintendent, Northern Railway, Allahabad v. Ram Sevan Das , a Bench of the High Court of Allahabad also dealt with a case of dismissal happening on conviction and the conviction getting reversed and acquittal being awarded to the servant on appeal and the servant asking for reinstatement. The Bench held that the removal of the order of conviction had the effect of removing die entire basis of such an order and hence, the order of dismissal based on mat must also fall with it.
12. In Union of India, represented by the General Manager, Park Town, Madras v. R. Akbar Sheriff AIR 1961 Madras 488, a Bench of the High Court of Madras dealt with a case, where the dismissal was based on conviction and subsequently, the conviction was set aside and me servant was reinstated. He was, however, denied die salary for the period from the date of his dismissal to the date of his reinstatement. After referring to the scope of Articles 310 and 311, the opinion was expressed as follows:
...The immunity of a civil servant under the Union of India from dismissal or removal from service or reduction in rank until he has been given a reasonable chance of showing cause against the action proposed to be taken against him is taken away under proviso (a) to Article 311(2) in a case where the dismissal or removal from service or reduction in rank is based upon the ground of conduct which resulted in his conviction on a criminal charge. In order to sustain an order of dismissal from service of a civil servant without compliance of the provisions of Article 311(2), there must be a conviction of that person on a criminal charge by a competent Court.
Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person of a criminal charge by a Higher Court setting aside the conviction passed by a subordinate or an inferior Court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a Court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside. This view of the matter is not a legal fiction as the proceedings forming the subject-matter of a criminal charge against a person from the primary Court of trial to the ultimate Court of final appeal or revision really constitute one proceeding and however varying the fortunes of the person indicated may be, the proceeding can always have only one result, and that is the result of the last proceeding which becomes indefeasibly final....
The learned Judges of the Bench of the High Court of Madras relied on the pronouncements in Dllbagh Rai v. Divl. Supdt., Northern Riy. , and in R.S. Dass v. Divl. Superintendent, Allahabad .
13. In Dhanji Ram Sharma v. Union of India and Anr. , a learned single Judge of the High Court of Punjab held that when the conviction, on the basis of which the servant was visited with an order of dismissal, was set aside on appeal, he will be entitled to reinstatement, as die order of dismissal has already turned out to be illegal, void and ineffective.
14. In Kunwar Bahadur v. Union of India and Ors. , a Full Bench of the High Court of Allahabad dealt with a case, the facts of which ran as follows:
On 17-5-1956, the servant was convicted for taking a bribe. On 21-5-1956, the services of the servant were terminated and no opportunity to show cause as provided in Article 311(2), was given to him. The seivant appealed against his conviction and the appeal was allowed oh 9-4-1957. The servant instituted a suit for a declaration that the order of termination of his services is void and he must be held to have continued in service. His plea was countenanced and the Full Bench answered the question posed before it in his favour. The question, the Full Bench was called upon to answer, was as to whether the servant was entitled to the protection of Clause (2) of Article 311. Oak, J. spoke thus on the question:
...Now, it is always open to Government to pass an order of dismissal or removal from service immediately after a Criminal Court records conviction. In that case the administration runs the risk of the conviction being later set aside in appeal or revision. It is for the administration to decide whether in a particular case it should pass an order of dismissal or removal immediately after conviction by the trial Court, or wait for the result of a possible appeal or revision. Such considerations of expediency can have little bearing on the interpretation of Article 311 of the Constitution.
...My answer to the question of law referred to the Full Bench is this. In the circumstances of the present case, the respondents are not entitled to the benefit of Sub-clause (a) of the proviso to Article 311(2), and the plaintiff-appellant is entitled to the protection of Clause (2) of Article 311 of the Constitution....
Dwivedi, J. opined that where a conviction is set aside by a Court in appeal or revision, it is difficult to say that the conduct has resulted in or led to his conviction. The further passage in the judgment of Dwivedi, J. requires extraction as follows:
...Let us now examine the context and scheme of Clause (a). It is associated with Clauses (b) and (c) of the proviso. Clause (b) dispenses with the hearing requirement of Article 311(2) when it is impracticable, for instance, when the employee is absconding. Clause (c) dispenses with hearing when it is inexpedient in the interest of the security of the State. There are judicially recognized areas where the audi alterant partem rule does not operate: S.A. de Smith, Judicial Review of Administrative Action (1959 Edn ) pages 119 and 121. In the context of Clauses (b) and (c) Clause (a) appears to exclude the said rule because aftel conviction in a Court of law it is considered to be inessential. It is supposed that this area exclusion inheres in the principle of natural justice which assures the essence of justice or 'rational justice'. The reason for the exclusion of hearing is that the misconduct of the employee has already been proved in a regular trial in the Court of law. Bat this reason disappears where the conviction is upset in appeal or revision. The finding of guilt is then gone, and the misconduct remains unproven. The reason disappearing, the exclusion of hearing becomes unjust and unfair.
The learned Judge held:
...Having regard to the language, context and scheme of Clause (a) and to its serious impact on the employees' right to livelihood I concur with the opinion of Sri Justice Oak.
Gangeshwar Prasad, J., expressed his reasoning as follows:
...So long as a conviction remains liable to be set aside it cannot be said to be determinate in its nature and its legal consequences, whether the conviction is already in question before a superior Court or not. The state of things created thereby is liable to change and, naturally, an order of dismissal which seeks to justify its non-compliance with the requirement of Article 3110 on the basis of such a conviction stands upon an insecure foundation. The order cannot have a higher validity than the conviction from which it derives its precarious justification and it must remain subject to the ultimati shape which is given to the state of things by the order of the superior Court before which the conviction is challenged. If the conviction is set aside, the state of things is made to undergo a change not merely from the date of the setting aside of the conviction but from the date of the conviction itself. Indeed, a finding of guilt recorded against a person cannot be said to have been effectively set aside if the reversal and the setting aside were to operate only from the date when the order to that effect is made and the person concerned were to be, even thereafter, regarded as having remained guilty and convicted till then. Such an order, whenever it may come to be made, has the effect of wiping out the winding of guilt and the conviction altogether. Whether a person was entitled to the safeguard provided by Article 311(2) and whether he has had the benefit of that safeguard are justiciable matters and it should, therefore, follow that when a Court is called upon to decide these matters it has to see whether, in the light of the final out come of the criminal proceeding in respect of the conduct for which the said person was dismissed. It can be said that the proceeding had led to his conviction - If it is found that the conviction was subsequently set aside, it must, in my opinion, be held that at no point of time was the person concerned a person whose conduct, on the ground on which he was dismissed from service, had led to his conviction....
15. The solitary decision of a learned single Judge of the High Court of Rajasthan, to which our attention was drawn, is found in Dr. Trilochan Singh v. State of Rajasthan 1983 (1) SLR 456. There, a contention was raised that the provisions of Clause (a) of second proviso to sub-art. (2) of Article 311 of the Constitution, which excludes the application of sub-art. (2) of Article 3-11-to cases where a person is dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge, and the provision of Sub-rule (1) of Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which enables penalty being imposed on a Government seivaat on the ground of conduct which has led to his conviction on a criminal charge without following the procedure laid down in the said rules, can be invoked only in those cases where the conviction has become final and that the provisions would not be attracted in cases where the conviction is under challenge in appeal and the appeal is still pending. The learned single Judge of the High Court of Rajasthan was obliged to take note that the legal position, as laid down in the earlier pronouncements of that Court, was not contested and held that so long as the appeal against the conviction is pending before the Appellate Court, the service of the Government employee cannot be terminated on the basis of the conduct which has led to his conviction. We do not want to comment upon the scope of the concerned rule in the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. But, our opinion placed on the plain and unambiguous terms of Clause (a) of the second proviso to Clause (2) Article 311, being what it is, we are not able to fall in line with the view expressed by the learned single Judge in the above pronouncement with reference to the provisions of the Constitution.
16. Though not on the subject of service law, yet we are obliged to advert to a pronouncemeat of the Supreme Court in Vidya Charan Shukia v. Purshottam Lal Kaushik , where the significance of an acquittal was taken note of in the context of a disqualification, which a returned candidate was asked to face on the date of scrutiny of his nomination papers in consequence of imposition of sentence. The Supreme Court held that the acquittal of a candidate, during the pendency of an election petition, wipes out the disqualification from the date of scrutiny. Thus, there are pronouncements in the sphere of remedial measures after the conviction is wiped out by the appellate or the re visional forum. The very conviction having been rooted out, any result solely resting on it must go. The repercussions generating from such conviction having been completely knocked out from the inception, the other Constitutional protection under Clause (2) of Article 311, which must be otherwise available must be held to have been breached.
17. Now, we must advert to cases, to which our attention has been drawn and in which cases, specific service rules or instructions have taken the field. As we made it clear at the inception of this pronouncement of ours, our concentration is only on the language of Clause (a) of the second proviso to Clause (2) of Article 311 and we have not traversed beyond that provision and any opinion of ours will have relevance only where the service rule or rules are in pari materia with the above provisions of the Constitution.
18. In Bholanath Khanna v. Union of India and Ors. 1975 (1) SLR 277, a learned single Judge of this Court had occasion to construe Rule 14 of the Railway Servants (Discipline and Appeal) Rules, 1958. The language of the Rule is not in pari materia with the language of the second proviso to Clause (2) of Article 311. To demonstrate how differently the language of that Rule is couched, we are obliged to extract that Rule as such:
14. Special procedure in certain case:
Notwithstanding anything contained in Rules 9 to 13-
(i) Where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criioinal charge, or
(ii) Where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or
(iii) Where the President is satisfied that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules;
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit....
In the light of the language of the Rule, the learned single Judge of this Court opined that the Disciplinary Authority is bound to afford an opportunity to show cause against the proposed penalty and the valuable right conferred by Rule 10(5) cannot be taken away in the garb of dispensing with the enquiry. The right conferred on the servant is to show that having regard to the nature of the fault, the attendant circumstances, the length of service, the nature of the service put in, the personal circumstances of the so vent coerced and having legrd to the other penalty, a lenient view deserves to be taken, the decision could not be of any assistance to us to pronounce upon the legitimate construe-to be put on Clause (a) of the second proviso to Clause (2) of Article 311. In Kirijkumar D. Vyas v. State and Anr. XXIII (2) [1982 (2)] GLR 79, a Bench of this Court was obliged to assess the inplicalicn of Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The said Rule reads as follows:
14. Special procedure in certain cases;
(1) Nothing contained in Rule 8 or 9 shall apply-
(i) where 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, 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 Government is satisfied that in the interest of the security of the State it is not expedient to follow such procedure.
(2) In cases to which the provisions of Sub-rule (I) shall apply, the Disciplinary Authority may consider the circumstances of the case concerned and pass such order thereon as it deems fit:
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.
Here again, we are not able to spell out any parity between the rule dealt with by the Bench and the Constitutional provision, which we are called upon to construe here. The Bench was obliged to find out the scope of the term 'consider', occurring in Sub-rule (2) of Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The Bench adverted to the following passage in the pronouncement of the Supreme Court in Divl. Personnel Officer v. T.R. Challappan :
The concluding part of Rule 14(1) merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered, The word 'consider' in the last part of Rule 14(1) merely connotes that there should be active application of the mind by the disciplinary authority after considering the entire circumstances of the case in order to decide the nature and extent of the penalty to be imposed on the delinquent employee on his conviction on a criminal charge. This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee.
It must be noted that the Supreme Court was dealing with Rule 14(1) of the Railway Servants (Discipline and Appeal) Rules, 1968. The Bench proceeded further as follows:
...These observations also make it clear that mere conviction on a criminal charge would not dispense with the requirement of at least an application of mind on the part of the disciplinary authority on the question of quantum of punishment after affording reasonable opportunity to the delinquent to be heard in regard to the quantum of punishment. Mere conviction, therefore, cannot be utilised for passing an order of dismissal blindfoldedly without hearing the delinquent on the question of sentence....
This pronouncement is also of no avail for our purpose.
19. In Laxman Waghjimal v. K.N. Sharma, D.S.P. Kutch and Anr. 1985 GLH (UJ) 28, a learned single Judge of this Court was dealing with a Government Circular dated 1-8-1966, which spoke to the effect that any action, on the basis of a conviction by a Court of law, could be taken only after the matter is finally decided in appeal or appeals and till then, no action regarding removal or compulsory retirement has to be taken. The learned single Judge characterised this provision as quite sensible. For the same reason, for which we found no assistance from the other pronouncements speaking on different rules, we cannot take any guidance from this pronouncement.
19.1. In Ahmadkhan Inayatkhan v. District Superintendent of Police, Bhnaskantha and Anr. , a Bench of this Court was again dealing with Rule 14 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. After adverting to the pronouncement in Kiritkumar D. Vyas v. State and Anrm XXIII (2) [1982 (2)] GLR 79. and in Laxman Waghjimal v. K.N. Sharma, D.S.P. Kutch 1985 GLH (UJ) 28, the Bench opined that failure to give notice to show cause before imposing a penalty, even in the case of the Government servant convicted by a Criminal Court, vitiates the dismissal based en conviction. It is lire that the Bench in the above pronouncement was of the view that the learned single Judge in Laxman Woghjiwal v. K.N. Sharma, D.S P., Kutch 1985 GLH (UJ) 28 held that until the criminal proceedings are finally over, no action could be taken, simply on the ground that the Lower Court has found the delinquent guilty. The Bench has not adverted to the fact that the learned single Judge in Laxman Waghjimal v. K.N. Sharma, D.S.P; Kutch 1985 GLH (UJ) 28 was concerned with a Government Circular, dated 1-8-1966 speaking on the lines, noted above. On Rules, Circulars, and Instructions providing for different contingencies and speaking in different language, we have no comment and we say this at the risk of repetition because the opinion, which we express, should not be taken to have touched upon such provisions.
20. Accordingly we express our opinion on the question coming up for our consideration as follows:
The conviction spoken to in Clause (a) of the second proviso to Clause (2) of Article 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position and action, taken on the basis of such conviction, need not conform to Clause (2) of Article 311, since by the express terms of the second proviso thereto, Clause (2) of Article 311 is dispensed with.
21. We have not analysed the facts of each of the cases, the reference in which we have answered, as above, and they require proper scrutiny, for decisions on merits by the appropriate Court. They shall be so posted after obtaining the requisite orders.