Patna High Court
Suryadeo Singh vs The State Of Bihar & Ors on 14 May, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
CIVIL WRIT JURISDICTION CASE No.12980 OF 2005
SURYADEO SINGH, SON OF LATE SAHDEO SINGH, RESIDNT OF
VILLAGE-DHARUPUR, P.S.-NOKHA, DISTRICT-ROHTAS.
---------------------------------------APPELLANT
VERSUS
1. THE STATE OF BIHAR.
2. THE SECRETARY, HUMAN RESOURCES (SECONDARY
EDUCATION) DEPARTMEN, GOVERNMENT OF BIHAR, PATNA.
3. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA.
4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, PATNA
DIVISION, PATNA.
5. THE DISTRICT EDUCATION OFFICER, ROHTAS, SASARAM.
6. THE HEADMASTER, ADARSH HIGH SCHOOL, SEMARA (DINARA),
DISTRICT-ROHTAS(SASARAM).
----------------------------RESPONDENTS
WITH
CIVIL WRIT JURISDICTION CASE NO. 14346 OF 2005
VIJAY KUMAR SHARMA, S/O SRI DHARM NATH SHARMA, R/O
VILL.+POST-VISHUNPURA, BHAYA-MAHARAJGANJ, DISTT.-
SIWAN.
-----------------------------------APPELLANT
Versus
1. THE STATE OF BIHAR.
2. THE DIRECTOR, SECONDARY EDUCATION, GOVT. OF BIHAR,
PATNA.
3. THE DEPUTY DIRECTOR, SECONDARY EDUCATION, GOVT. OF
BIHAR, PATNA.
4. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, SARAN
DIVISION, SARAN.
5. THE DISTRICT EDUCATION OFFICER, SIWAN.
-----------------------------RESPONDENTS
*****************
For The Petitioner : Mr. Shyama Prasad Mukherjee, Senior
Advocate
(in CWJC No. 12980/05) Mr. Shanti Pratap, Advocate
Mr. Amarendra Kumar Pathak, Advocate
For The Petitioner : Mr. Rajendra Prasad Singh, Senior Advocate
(in CWJC No. 14346/05) Mr. Rajeev Kumar Singh, Advocate
For The Respondent : Mr. Prabhakar Tekriwal, Standing Counsel No. 1
(In Both the Cases)
***********
PRESENT
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
Mihir Kr Jha, J. Both these writ applications involve a common
question and, therefore, having been heard together are being
disposed of by this common judgment.
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2. In C.W.J.C. No. 12980 of 2005, the prayer of the
petitioner is to quash the order, dated 06.09.2005 passed by the
Director, Secondary Education, Bihar, Patna whereby and
whereunder the services of the petitioner Suryadeo Singh has been
terminated on the ground of his being convicted for offences under
Section 307/149 Indian Penal Code (IPC) in Sessions Trial No. 36
of 1985/2 of 2004 sentencing him to undergo rigorous
imprisonment for a period of five years.
3. The facts in brief of the writ petitioner Suryadeo Singh
is that he was appointed on the post of Assistant Teacher in
Adarsh High School, Semara in the district of Rohtas on
02.01.1972 while the said school was a private high school.
Subsequently, the school was taken over by the Government with
effect from 02.10.1980 and the petitioner was retained as a
Government servant with effect from 02.10.1980 by continuing him
as the Assistant Teacher of the aforementioned school. The
petitioner while he was continuing in service as an Assistant
Teacher was made an accused in a criminal case arising out of
Nokha Police Station Case No. 187 of 1983 and in the said criminal
case after submission of the charge sheet, as the offences related to
Section 307/149 IPC in addition to other allied offences u/s
147/148/149/323IPC the case was committed to the Court of Sessions in Sessions Trial No. 36 of 1985/2 of 2004, the petitioner and his other family members were convicted for offences under Section 307/149 of the Indian Penal Code by a judgment dated 17.05.2005 passed by the Additional Sessions Judge, Fast Track Court No. I, Rohtas at Sasaram and was sentenced to undergo 3 rigorous imprisonment for a period of five years. The petitioner was thereafter also taken into custody on 17.05.2005 and could be released on bail on 14.06.2005 in view of an interim order dated 26.5.2005 passed by this Court when he had filed the Criminal Appeal No. 354 of 2005.
4. It is the further case of the petitioner Suryadeo Singh that thereafter he had submitted his joining report and the matter related to his joining was referred to the Controlling Authority, namely, the Regional Deputy Director of Education. It appears that the matter relating to his joining had remained pending consideration of the higher authorities and it was in this transaction that when the issue was examined by the Director, Secondary Education, the impugned order dated 6.9.2005 was passed terminating the services of the petitioner on the ground that he had been convicted by the Sessions Court. In the impugned order infact it has been clearly stated that the service of the petitioner were being terminated on account of his being convicted by the Sessions Court and as such his request for joining the services after being released on bail by the appellate Court was not permissible in view of the circular no. 7820, dated 28.10.2003 and as such following the government decision in the aforementioned circular, dated 28.10.2003, the services of the petitioner were being terminated.
5. In the second writ application C.W.J.C. No. 14346/2005 the facts related to the writ petitioner Vijay Kumar Sharma are that he was appointed as an Assistant Teacher by the Director, Secondary Education in view of the recommendation of the 4 Vidyalaya Seva Board by an order dated 15.11.1983 and he was posted in Boys High School, Mohanpur. Subsequently, he was transferred to Boys High School, Parsagardh, Akama in the district of Rohtas in January, 1986 and while he was continuing as an Assistant Teacher of the said school, he was made accused in Darunda Police Station Case No. 49 of 1994 for offences under Section 307/323 and other allied sections of the Indian Penal Code. The petitioner Vijay Kumar Sharma with other co-accused persons were put on trial after the police had submitted the charge sheet against them and the Trial Court had framed charges under Sections 307/148 IPC as well as under Sections 307/149 IPC in Sessions Trial No. 340 of 1995 and the Court of Additional Sessions Judge Fast Track Court No. IV, Siwan by a judgment dated 06.08.2003 had convicted the petitioner Vijay Kumar Sharma under Section 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of one year as also sentenced to pay a fine of Rs. 500/- and in default to further undergo imprisonment for a further period of six months.
6. It is the further case of the petitioner Vijay Kumar Sharma that thereafter he had preferred Criminal Appeal No. 404 of 2003 and this Court by an order dated 25.08.2002 had confirmed the provisional bail granted to him by the Trial Court as also had stayed the realization of fine. It, however, appears that some query was made by the District Education Officer, Saran from the headmaster of the school of the petitioner vide letter dated 26.08.2003 and in response thereto the headmaster had explained that though the petitioner Vijay Kumar Sharma had been convicted 5 and sentenced by the Trial Court, but as he was released on provisional bail and as such he never been taken into custody. From the averment made in the writ application, it transpires that the matter was thereafter referred by the District Education Officer to the Director, Secondary Education and the Office of the Director, Secondary Education had sought for a detailed report as with regard to the conviction and sentence of petitioner Vijay Kumar Sharma and when a reply thereto was sent by the District Education Officer, the impugned order dated 06.09.2005 was passed by the Director, Secondary Education terminating the services of the petitioner on the ground of his being convicted in a criminal case in the light of the circular of the Chief Secretary of the Government of Bihar contained in letter no. 7820 dated 28.10.2003. It is against this order of termination of services dated 06.09.2005 that the petitioner Vijay Kumar Sharma had filed this writ application on 22.11.2005 with a prayer that the said order dated 06./09.2005 should be quashed and the petitioner be reinstated in service.
7. Counter affidavits have been filed in both the cases and the stand taken therein by the respondents is same and identical inasmuch as it has been stated that both the petitioners were convicted and sentenced by the Trial Court, the appointing authority, namely, the Director, Secondary Education has passed the order of their removal/termination in the light of the Government decision contained in a circular of the Chief Secretary of the Government of Bihar in letter no. 7820, dated 28.10.2003 by which all the departmental heads of the State Government were 6 directed to take action in terms of the proviso (a) to Article 311 (2) of the Constitution of India envisaging that the Government servant may be dismissed or removed or reduced in rank without being subjected to departmental proceeding on the ground of conduct which has led to his conviction on a criminal charge. In nut shell, the stand of the respondents is that in view of the judgment of conviction and order of sentence, the appointing authority, the Director, Secondary Education was satisfied that the conduct of both the petitioners which led to their conviction on a criminal charge was sufficient for their removal from services.
8. Mr. Shyama Prasad Mukherjee as also Mr. Rajendra Prasad Singh learned senior counsels for the petitioners have submitted that the said order of removal of services of the petitioner was not sustainable only on the ground that the same was passed without giving any notice/any opportunity of hearing to them. It has further been submitted by them that the conviction which was made by the Sessions Court was with regard to a charge which was not connected to their official duty, and therefore, the bald application of the Government circular, dated 28.10.2003 in their cases which is reflected to complete non-application of mind by the Director, Secondary Education. They have further submitted that the severest of the punishment of removal from service of the petitioners ought to have not passed because it is not the requirement of law including the Service Rule that the moment any Government servant is convicted in a criminal case, he must be removed from service. In other words, they have also raised the issue of quantum of punishment. Reliance in this connection by 7 both the Senior Counsels have been placed in the case of Kailash Chander Asthana vs. State of U.P. and Others, reported in AIR 1988 SUPREME COURT 1338 and in the case of Union of India vs. Parma Nanda, reported in AIR 1989 SC 1185 as also a judgment of this Court in the case of Sarju Prasad Singh vs. The State of Bihar & Others, reported in 1987 PLJR 285 which according to them lay down a law that even after conviction in a criminal case, the authorities are required to look into the factum of allegations and the conduct of the Government servant which led to their conviction for the purposes of inflicting the punishment and further that in all cases of conviction and sentence in a criminal case it would not be a correct exercise of discretion to remove the person concern from services.
9. Mr. Prabhakar Tekriwal, learned Counsel appearing on behalf of the State in both the cases, however has raised a preliminary objection with regard to maintainability of both the writ applications on the ground of statutory alternative remedy. In this regard he has submitted that both the petitioners were teachers of high school whose appointing authority was the Director, Secondary Education under the BIHAR Rajkiyakrit Madhyamik Vidyalaya Sewa Shart Niyamavali, 1983 hereinafter referred to as Sewasharta Niyamavali and once an order of punishment of removal from service has been passed by the Director, the forum of statutory appeal against such order in terms of Rule 9(2) of aforesaid Sewasharta Niyamavali was before the Principal Secretary of the Human Resource Development Department. He has also submitted that the impugned orders can 8 not be faulted on the ground that no notice and/or opportunity of hearing was given to the petitioners before passing of the impugned order of removal from services inasmuch as neither under Article 311(2) of the Constitution of India nor under the Bihar Government Servants (Classification, Control & Appeal) Rules, 2005 (hereinafter referred to as the "Rules"), there is a requirement of service of notice to an affected employee before taking a decision for removing them from services. It has been also submitted by them that once it was found from judgment of conviction of the petitioners that they were convicted and sentenced by the Sessions Court in heinous crime such as attempt to murder or causing hurt, under Section 307 IPC and/or 325 IPC, the same by itself was sufficient to indicate that the conduct of the petitioners holding the post of teachers was not such which was good enough to retain them in Government services. Mr. Tekriwal had also taken a stand that a judicial review of the quantum of punishment by this Court under Article 226 of the Constitution of India was also not permissible. In this regard he had also placed reliance on the judgment of the Apex Court in the cases of Union of India and Another vs. Tulsiram Patel (& other analogous cases), reported in AIR 1985 SC 1416 and Jose Antonio Cruz Dos R. Rodriguese Vs. Land Acquisition Collector 1996 (6) SCC 749.
10. In the light of the aforementioned submissions, the first question which needs to be examined is whether the writ petitions are maintainable in absence of the petitioners not exhausting the statutory remedy of appeal. It is not in doubt that both under the Sewa Shatra Niyamavali 1993, there is a provision of appeal 9 against the order of punishment, but then a question arises as to whether both the writ petitioners can be non-suited on the ground of not filing their appeal against the impugned orders of the removal of services before filing of the writ petitions. This question, however, as with regard to the maintainability of the writ application should not detain this Court, in view of the fact that it is an admitted position that as the orders of punishment came to be passed without compliance of the principals of natural justice. It is not disputed by the learned State Counsel that the Director, Secondary Education before passing the impugned orders had not issued any notice and/or given any opportunity of hearing. Therefore, once it is found that the impugned orders have been passed in complete breach of principles of natural justice, this Court can not shut its doors only because the petitioners did not file their appeal. Way back, the Apex Court in the case of State of U.P. Vs. Md. Nooh reported in AIR 1958 SC 86 had held that writ applications under Article 226 of the Constitution of India would be maintainable before the High Court even in those case where the statutory remedy of appeal has not been invoked by the petitioners when the order passed and assailed is either in violation of the principle of natural justice or is wholly without jurisdiction. The aforesaid view of the Apex Court has been reiterated from time to time in series of judgments as was noticed by the Apex Court itself in the case of Whirlpool Corporation Vs. Registrar of Trade Marks Mumbai and others reported in (1998) 8 S.C.C. 1 wherein their Lordships had held as follows:-
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"........Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged........"
11. That apart it is not in doubt that both the impugned orders for removing the petitioners from service were passed on the ground of their being convicted in criminal cases on the strength of a government decision contained in a circular issued by the Chief Secretary of the Government of Bihar, dated 28.10.2003. Such circular containing the government decision for taking actions against convicted employees having been issued by the Chief Secretary and the appellate authority being the Principal Secretary of the Human Resource Development Department, subordinate in rank to the Chief Secretary, was/is not expected to take any contrary decision specially when the Director, Secondary Education while passing the impugned orders has only sought to abide by the government decision contained in circular issued by the Chief Secretary. Thus, infact the appeals filed by the petitioners would have been a futile exercise.
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12. As a matter of fact, when a query was made by this Court from the learned State Counsel as to whether the departmental Secretary (Principal Secretary in the Human Resource Development Department) can take an independent decision in the matter of removal of service of the petitioners as directed an order by the Director, Secondary Education in the impugned order, he fairly conceded that in presence of the circular of the State Government, it was not likely that the Principal Secretary could have taken a different decision.
13. Considering the aforementioned aspects, this Court holds that the writ applications are maintainable and the petitioners can not be non-suited only on the ground that they had not exercised their alternative statutory remedy.
14. The next question would be as to whether the order of removal from service of the petitioner on the ground that they had been convicted in criminal cases can be passed against them without giving any notice and/or opportunity of hearing. It is quite elementary and infact also well settled that any order visiting the persons with civil and evil consequences must be preceded by strict observance of the principal of natural justice. This has been the consistent view of the Apex Court and this Court, and reference in this connection may be made to the judgment of the Supreme Court in the case of S. L. Kapoor vs. Jagmohan and others, reported in AIR 1981 SUPREME COURT 136 where the subject with regard to the compliance of the principal of natural justice has been dealt with quite exhaustively with a conclusion that compliance of principle of natural justice is an integral part of 12 rendering justice and ante-thesis of arbitrariness in any form, an avowed object and guiding principle of Article 14 of the Constitution of India.
15. There can be no two views that when a permanent Government servant is removed from service on any ground, he is entitled to protection of Article 311 (2) of the Constitution of India which lays down as follows :-
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State -
(1) xx xx xx (2) No such person as 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 those 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 a criminal charge; or
(b) where the 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) xx xx xx 13
16. From the very tenor of Article 311 (2) of the Constitution of India, it would be clear that in the event the Government servant is sought to be inflicted punishment of dismissal, removal of reduction in rank, it has be preceded by an inquiry after informing the charges against him and giving him a reasonable opportunity of being heard in respect of each of the charges.
17. It is true that under proviso to Article 311(2) of the Constitution of India, it has been envisaged that such inquiry after framing of charges and giving a reasonable opportunity of being heard in respect of those charges would not be necessary where a person is dismissed or removed or reduced in rank on a ground of the conduct which has led to his conviction of a criminal charge.
However, there is nothing in Article 311 of the Constitution of India which says that even notice is not required to be given to such a persons who is sought to be dismissed or removed or reduced in rank on the ground of his conviction of a criminal charge. In the considered opinion of this Court, proviso (a) to Article 311(2) of the Constitution of India only suggests that the requirement of a regular departmental enquiry which begins with the framing of charge, continues with the leading of evidence by way of giving opportunity of hearing and concluding it by an appropriate order of punishment is not required to be gone into in the cases in which government servants are removed from service on the ground of conviction by a court of law in a criminal case. It therefore appears to this Court that as a matter of fact even when the procedure of a regular departmental proceeding would not be required to be followed in case of dismissal, removal or reduction in rank on the 14 ground of conviction in a criminal cases, even in those cases it would be absolutely necessary to issue notice and/or afford an opportunity of hearing to the concerned person that there is a tentative decision to inflict him with such punishment of dismissal, removal or reduction in rank because his conduct on the basis of the specific criminal charge which led to his conviction did not render him fit to continue in the Government service or the post which he was holding prior to his conviction.
18. Such interpretation of provision (a) to Article 311(2) of the Constitution of India infact also gets support from the provisions of the Rules wherein a detailed mechanism has been provided under rule 17 to 19 by way of procedure for imposing penalties under Rule 14, being minor and major penalties. In this context it would be useful to quote the relevant provisions of the Rules, which read as follows : -
"14. Minor and Major Penalties - The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a government servant, namely:-
Minor Penalties:-
(i) censure;
(ii) withholding of promotion;
(iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders;
(iv) reduction to a lower stage in the time-scale of pay for a period not exceeding three years, without cumulative effect.
(v) withholding of increments of pay;
Major Penalties:-
(vi) Save as provided for in clause(iv), reduction to a lower stage in time scale of pay for a specified period, with further directions as to whether or not the government servant will 15 can increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;
(vii) reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the government servant to the time-scale of pay, grade, post or service from which the government servant was reduced and his seniority and pay on such restoration to that grade, post or Service;
(viii) compulsory retirement;
(ix) removal from service which shall not be a disqualification for future employment under the Government; (x) dismissal from service which shall ordinarily be a disqualification for future employment under the Government;
Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause(ix) pr clause (x) shall be imposed;
Provided further that in any exceptional case and for special reasons to be recorded in writing, any other penalty may be imposed.
15. --------------------------------------------------
16. --------------------------------------------------
17. Procedure for imposing major penalties.
(1) No order imposing any of the penalties specified in clauses (vi) to (x) of rule 14 shall be made without holding an inquiry, as far as may be, in the manner provided in these Rules.
(2) Wherever the disciplinary authority is of the opinion that there are grounds for inquiring about the truth of any imputation of misconduct or misbehaviour against a government servant, he may himself inquire into it, or 16 appoint under these Rules an authority to inquire about the truth thereof.
(3) Where it is proposed to hold an inquiry against a government servant under this rule, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour as a definite and distinct article of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission of confession made by the government servant;
(b) a list of such document by which, and a list of such witnesses by whom, the articles of charge are proposed to be sustained;
(4) The disciplinary authority shall deliver or cause to be delivered to the government servant a copy of the articles of charge, such statement of the imputations of misconduct or misbehaviour and as list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person. (5) (a) On receipt of the written statement of defence, the disciplinary authority may himself inquire into such of the articles of charge which are not admitted, or, if it things necessary to appoint, under Sub-rule(2) of this rule, an inquiry authority for the purpose he may do so and where all the articles of charges have been admitted by the government servant in his written statement of defence, the disciplinary authority shall record his findings on each charge after taking such evidence as it may think fit and shall take action in the manner laid down in rule 18.
(b) If not written statement of defence is submitted by the government servant, the disciplinary authority may itself inquire into the articles of charge or may, if it things 17 necessary to appoint, under sub-rule(2) of this rule an inquiry authority for the purpose, it may do so.
(c) Where the disciplinary authority itself inquiries into any article of charge or appoints an inquiring authority for holding an inquiry about such charge, it may, by an order, appoint a government servant or a legal practitioner, to be known as the "Presenting Officer" to present on his behalf the case in support of the articles of charge. (6) The disciplinary authority shall, where it is not the inquiring authority, forward the following records to the inquiring authority:-
(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour.
(ii) a copy of the written statement of defence, if any, submitted by the government servant.
(iii) a copy of the statement of witnesses, if any, specified in sub-rule(3) of this rule.
(iv) evidence proving the delivery of the documents specified to in sub-rule(3) to the government servant. and
(v) a copy of the order appointing the "Presenting officer." (7) The government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by a notice in writing, specify in this behalf or within such further time, not exceeding ten days, as may be specified by the inquiring authority.
(8) (a) The government servant may take the assistance of other government servant posted in any office, either at his headquarter or at the place where the inquiry is to be held, to present the case on his behalf;
Provided that he may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of 18 the case, so permits;
Provided also that the government servant may taken the assistance of any other government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits;
Provided further that the government servant shall not take the assistance of any such other government servant who has three pending disciplinary cases on hand in which he has to give assistance.
(b) The government servant may take the assistance of a retired government servant to present the case on his behalf, subject to such conditions as may be specified by the Government from time to time by general or special order in this behalf.
(9) If the government servant, who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has to say any thing for his defence and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the government servant thereon. (10) The inquiring authority shall return a finding of guilt in respect of those articles of charge which the government servant pleads guilty.
(11) The inquiring authority shall, if the government servant fails to appear within the specified time or refuses or omits to plead. require the Presenting officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the government servant may, for the purpose of preparing his defence-
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring 19 authority may allow, the documents specified in the list in sub-rule(3);
(ii) submit a list of witnesses to be examined on his behalf;
(iii) give a notice within ten days of the order or within such further time as the inquiring authority may allow for the discovery of production of any documents which are in the possession of Government but not mentioned in the list specified in sub-rule(3) of this rule;
Provided that the government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.
(12) The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the document by such date as may be specified in such requisition.
Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.
(13) On receipt of the requisition specified in sub-rule(12) of this rule, every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority;
Provided that if the authority, having the custody or possession of the requisition documents is satisfied, for reasons to be recorded by it in writing, that the production of all or any of such documents will be against public interest or security of the State, he shall inform the inquiring authority accordingly and the inquiring authority shall on being so informed, communicate the information to the government servant and withdraw the requisition made by it for the production or discovery of such documents. (14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are 20 proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting officer and may be cross- examined by or on behalf of the government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross- examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses, as it things fit. (15) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in his discretion, allow the Presenting officer to produce evidence not included in the list given to the government servant or may itself call for new evidence or recall and re-examine any witness and in such case the government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary in the interests of justice;
Provided that new evidence shall not be permitted or called for or any witness shall not be recalled to supplement the evidence. Such evidence may be called for if there is any inherent lacuna or defect in the evidence, produced originally.
(16) When the case for the disciplinary authority is closed, the government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the government 21 servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
(17) The evidence on behalf of the government servant shall then be produced. The government servant may examine himself in his own behalf if he so prefers. The witness produced by the government servant shall then be examined and they shall be liable to examination, cross examination and, re-examination by the inquiring authority according to the provisions applicable to the witness for the disciplinary authority.
(18) The inquiring authority may, after the government servant closes his case, and shall, if the government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him. (19) The inquiring authority may, after the completion of the production of evidence, hear the presenting Officer, if any, appointed and the government servant, or permit them to file written briefs of their respective case, if they so desire. (20) If the government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte.
(21) (a) Where a disciplinary authority competent to impose any of the penalties specified in clauses(i) to (v) of rule 14 [but not competent to impose any of the penalties specified in clauses (vi) to (x) of rule14], has himself inquired into or causes to be inquired into the article of any charge and that authority having regard to his own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties 22 specified in clauses (vi) to (x) of rule 14 should be imposed on the government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the penalties mentioned in clause (vi) to (x) of rule 14.
(b) The disciplinary authority to which the records are so forwarded may act on the evidence on the records or may, if he is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witnesses and examine, cross examine and re-examine the witnesses and may impose on the government servant such penalties as it may deem fit in accordance with these rules. (22) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has and which exercises, such jurisdiction the inquiring authority so succeeding may act on the basis of evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross examine and re-examine any such witnesses as hereinbefore provided.
(23) (i) After the conclusion of the inquiry, a record shall be prepared and it shall contain-
(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour.
(b) the defence of the government servant in respect of each article of charge. .
(c) an assessment of the evidence in respect of each article of charge.
(d) the findings on each article of charge and the reasons thereof.
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(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include-
(a) the report prepared by it under clause (i) of this sub rule;
(b) the written statement of defence, if any, submitted by the government servant.
(c) the oral and documentary evidence produced in the course of the inquiry;
(d) written briefs, if any, filed by the Presenting Officer or the government servant or both during the course of the inquiry; and
(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.
18. Action on the inquiry report - (1) The disciplinary authority, if it is not itself the inquiring authority may, for reasons to be recorded by it in writing, may remit the case to the inquiring authority for further inquiry and report and the inquiring authority shall thereupon proceed to hold the further inquiry according to the provisions of rule 17 as far as may be.
(2) The disciplinary authority, after receipt of the enquiry report as per rule 17 (23)(ii) or as per sub-rule(1), shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons for such disagreement and record its own finding on such charge, if the evidences on record is sufficient for the purpose.
(3) The disciplinary authority shall forward or cause to be forwarded a copy of the inquiry report, together with its own findings, if any, as provided in sub-rule(2), to the government servant who may submit, if or she so desires, his or her written representation or submission to the disciplinary authority within fifteen days.
(4) The disciplinary authority shall consider the representation or submission, if any, submitted by the 24 government servant before proceeding further in the manner specified in sub rules (5) and (6).
(5) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in clauses(i) to (v) of rule 14 should be imposed on the government servant, it shall, notwithstanding anything contained in rule-19, make an order imposing such penalty.
(6) If the disciplinary authority, having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in clauses (vi) to (x) of Rule 14 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed. (7) Notwithstanding anything contained in sub-rule(5) and (6), in every case where it is necessary to consult the Commission, the Commission shall be consulted and its advice shall be taken into consideration before making any order imposing any penalty on the government servant.
19. Procedure for imposing minor penalties-(1) Subject to the provisions of sub-rule (3) of rule 18, no order imposing on a government servant any of the penalties specified in clauses(i) to (v) of rule 14 shall be made except after-
(a) informing the government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him reasonable opportunity of making such representatino as he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub- rules(3) to (23) of rule 17, in every case in which the disciplinary authority is of the opinion that such inquiry is necessary;
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(c) taking the representation, if any, submitted by the government servant under clause (a) and the record of inquiry, if any, held under clause (b) into consideration.
(d) reading a finding on each imputation of misconduct or misbehaviour.
(e) consulting the Commission where such consultation is necessary.
(2) the record of the proceedings in such cases shall include-
(i) a copy of the intimation to the government servant or the proposal to take action against him,
(ii) a copy of the statement of imputations of misconduct or misbehaviour delivered to him.
(iii) his representation, if any,
(iv) the evidence produced during the inquiry;
(v) the advice of the Commission, if any,
(vi) the findings of each imputation of misconduct or misbehaviour. and
(vii) the orders on the case together with the reasons therefor.
20. Special procedure in certain cases-
Notwithstanding anything contained in rule 17 to 19
(i) where any penalty is 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 by him in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or
(iii) where the Government is satisfied that in the interest of the State, it is not expedient to hold any 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;
Provided that the government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case 26 under Clause(i);
Provided further that the Commission shall be consulted, where such consultation is necessary, before any orders are made in any case under this rule."
19. It is not in doubt that removal from service under rule 14 is a major penalty under Rule 14 (IX). If in this context, the exhaustive provision under rule 17 laying down the procedure for imposing major penalty is taken into consideration, it would be absolutely clear that only such procedure for imposition of penalties was not to be followed in the case of a Government servant who had been convicted on a criminal charge. Rule 20 of the Rules infact lays down that notwithstanding anything contained in rule 17 to 19 where any penalty is imposed on a government servant on the ground of conduct which had led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such order thereon as it deems fit.
20. The second proviso to rule 20 infact answers the question in hand where it has been said that the government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under rule 20 (i) of the Rules. Thus, from the reading of rule 20(i) of the Rules and its second proviso, it is absolutely clear that even in cases where penalty is to be imposed, either major or minor in terms of rule 14, the government servant is required to be given an opportunity of making a representation on the penalty proposed to be imposed before an order is made on the ground of conviction on a criminal charge.
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21. The submission of learned Government Advocate that the expression "may" used in the second proviso had made the requirement of giving an opportunity of making representation on the penalty proposed before passing an order of punishment on the ground of conviction on a criminal charge was directory or optional, in the opinion of this Court is also not correct. It is well settled that the expression "may" or "shall" by itself would not be conclusive as with regard to the provisions being mandatory or directory rather the purport and purposes of the Rules will have to be looked into for decision as to whether the same is mandatory or directory. In the present case, where it is found that the government has been vested power to impose penalty on the ground of conviction of a government servant on a criminal charge without following the detailed procedure of inquiry under rule 17 for inflicting a major punishment or rule 19 for inflicting a minor punishment, the same has been immediately explained by carving out an exception only in the case of one of the three category, namely, where punishment is to be inflicted to a government servant on the ground of conviction in a criminal case. This becomes abundantly clear from use of expression under clause (i) in the second proviso excluding such opportunity of making representation on the penalty proposed in case where such order of punishment has to be passed without holding inquiry when the disciplinary authority is satisfied that such holding of inquiry is not possible as envisaged under clause 20 (ii) or in such cases where the Government is satisfied that in the interest of the State, it would not be expedient to hold any inquiry in the manner 28 provided in the rules. In other words, the framers of the Rules envisaged that before any order of punishment by way of penalty is made against the government servant on the ground of his being convicted on a criminal charge, he has to be given an opportunity of making representation on the penalty proposed. Judged in this light, this Court is of the view that even when no regular departmental enquiry for inflicting a major punishment as envisaged under clause 17 to 18 of the Rules would be required in a case a government servant is sought to be inflicted any of the penalties under rule 14 whether major or minor, yet he has to be given an opportunity of making representation against such proposed penalty. In the opinion of this Court, if the provisions made in the second proviso of rule 20 is held to be discretionary or optional, the whole purpose of carving out an exception only for special type of cases under clause 20(i) pertaining to inflicting punishment/or penalty against a government servant convicted in a criminal case would be frustrated. Thus, this Court holds that in view of the provisions made in the second proviso to rule 20, a government servant even after his being convicted in a criminal case will have to be given a limited notice as to whether he was convicted, as to whether his conduct emerging out of the criminal charge which led to his conviction rendered him wholly unfit for being retained in government service or still for some lesser punishment as is provided under the heads of either minor penalty or major penalty under rule 14 of the Rules. The submission of the learned Government Advocate on the expression of the word "may" in the second proviso can also not be accepted 29 on the ground that the HINDI TEXT in which the rules where originally based and whose translation in English has been relied by the learned Government Advocate, itself makes it clear that the expression "may" used in English is not a correct translation of the Hindi rendering. To make this aspect clear, this Court would like to quote the original Hindi test of the notification dated 12.07.2005 issued by the Personal and Administrative Reforms Department containing the rules which were originally published in Hindi. Rule 20 under the said notification reads as follows:-
20 dfri; ekeyksa esa fo'ks"k izfdz;k & fu;e& 17 ls 19 esa vUrfoZ"V fdlh ckr ds gksrs gq, Hkh &
(i) tgkWa fdlh ljdkjh lsod ij dksbZ 'kkfLr fdlh vkijkf/kd vkjksi ds laca/k esa mldh nks"kflf) dh vksj ys tkus okys vkpj.k ds vk/kkj ij vf/kjksfir fd;k tk;] vFkok
(ii) tgkWa vuq'kklfud izkf/kdkj dk vius }kjk fyf[kr :i esa vfHkysf[kr fd;s tkus okys dkj.kkssa ls ;g lek/kku gks tk; fd bl fu;ekoyh esa micaf/kr jhfr ls tkap djuk ;qfDr;qDr :i ls O;ogk;Z ugha gS] vFAok
(iii) tgka ljdkj dk lek/kku gks tk; fd bl fu;ekoyh esa micaf/kr jhfr ls dksbZ tkap djuk jkT; ds fgr esa lehphu ugha gS] rks vuq'klfud izkf/kdkj ekeys dh ifjfLFkfr;ksa ij fopkj dj ldsxk rFkk ,slk vkns'k ns ldsxk tks og Bhd le>s% ijUrq ;g fd [kaM (i) ds v/khu fdlh ekeys esa dksbZ vkns'k djus ds iwoZ vf/kjksfir dh tkusokyh izLrkfor 'kkfLr ij ljdkjh lsod dks vH;kosnu nsus dk ,d volj fn;k tk;sxk;
ijUrqa ;g vkSj fd bl fu;e ds v/khu fdlh ekeys esa dksbZ vkns'k djus ds iwoZ vk;ksx ls ijke'kZ fd;k tk;sxk tgka ,slk ijke'kZ vko';d gks A
22. The English translation of the first proviso to Rule 20 which has already been extracted above if compared, with corresponding the Hindi Text would thus by itself make it 30 abundant by clear that a Government servant has to be afforded an opportunity of making representation on the penalty proposed before any order is passed for imposing the penalty on the ground of his conviction on a criminal charge. In the opinion of this Court, the Hindi Text of proviso to Rule 20 safely itself eliminates the provision relating to notice and/or opportunity of making representation of being directory in nature as the very purpose of introducing a proviso for making representation against the proposed penalty would be rendered nugatory. It is well settled principle of interpretation of statute that while making harmonious construction the Court cannot make any provision redundant to defeat its legislation instant. Judged in this aforesaid background which this Court finds the English rendering of first proviso to Rule 20 by using the expression may does not convey the real intent as originally provided in the Hindi text, it must be held that a notice and/or opportunity of hearing by way of affording of filing against a proposed punishment to a government servant convicted in a criminal case by a court of law is mandatory. It is well settled by the Full Bench of this Court in the case of Dr. Sachidananda Sinha Vs. The Collector, Patna reported in 1989 P.L.J.R. 1141 that in case of conflict between the Hindi Text and the English Text of a legislation it is the Hindi Text which will always prevail.
23. The second limb of submission of the learned Government Advocate that in case the second proviso of giving an opportunity for making representation on the proposed penalty is read as "shall" and not "may" by treating it to be a mandatory, would thus be in the teeth of the provisions made in Article 311(2) 31 of the Constitution of India is equally unsustainable. There infact appears to be no conflict between second proviso to Article 311(2) and first proviso to Rule 20 and infact both can very well co-exist. Article 311 (2) infact stops after making a provision that in certain cases including conviction of a government servant holding of departmental enquiry by framing of charge and giving an opportunity of hearing to the delinquent before inflicting punishment would not be necessary. Article 311(2) infact does not lay down that when an order of punishment is to be passed against the government servant for inflicting a penalty of dismissal, removal or reduction in rank on the ground of his being convicted on a criminal charge, it would also not require the government servant to be informed of the proposed penalty and giving an opportunity to make representation against the proposed penalty. To that extent, the provisions made in first proviso to rule 20 is only supplemental in nature and does not seek to supplant the provisions in Article 311(2) of the Constitution of India. The submission of the learned Government Advocate that the expression "may" used in the English translation in the second proviso should mean that the provision is directory and can also be not expected for any ground, namely, such second proviso in clause 20 seeks to make the provision for compliance of the principle of natural justice in cases where the order of punishment is sought to be passed against a government servant who has been convicted on a criminal charge. By now, it is well settled that the exclusion of the principle of natural justice has to be specifically provided in the Statute or else such provisions of natural justice 32 will have to be read into it. Reference in this connection may be made not only to the aforementioned case of S. L. Kapoor (supra) wherein it has been held that:-
"In our view the principles of natural justice know of no exclusively rule dependent on whether it would have made any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."
Again in the case of Rash Lal Yadav Vs. State of Bihar reported in 1994(2) P.L.J.R. (SC) 76 it had been held as :-
"What emerges from the above discussion is that unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences."
This view infact gets a further support from the judgment of Apex Court in the case of Basudeo Tiwari Vs. Sido Kanhu University reported in 1999(1) PLJR (SC)30 "The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are the components of fair treatment. The conferment of absolute power to terminate the services of an employee is an antithesis of fair, just and reasonable treatment. this aspect was exhaustively 33 considered by a Constitution Bench of this Court in Delhi Transport Corpn. Vs. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600 :AIR 1991 SC 101.
In order to impose procedural safeguards, this Court has read the requirement of natural justice in many situations when the statute is silent on this point. The approach of this Court in this regard is that omission to impose the hearing requirement in the State under which the impugned action is being taken does not exclude hearing-it may be implied from the nature of the power- particularly when the right of a party is affected adversely. The justification for reading such a requirement is that the court merely supplies omission of the legislature (vide Mohinder Singh Gill Vs. Chief Election Commr. (1978)1SCC 405 : AIR 1978 SC 851] and except in case of direct legislative negation or implied exclusion (vide S.L. Kapoor Vs. Jagmohan (1980) 4 SCC 379 : AIR 1981 SC 136).
In the light of these principles of law, we have to examine the scope of the provision of Section 35(3) which reads as follows:
"35.(3) Any appointment or promotion made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner shall be terminated at any time without notice."
The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the provisions of the Act, statutes, rules or regulations or in any irregular or unauthorised manner. The condition precedent for exercise of this power is that an appointment had been made contrary to the Act, rules, statutes and regulations or otherwise. In order to arrive at a conclusion that an appointment is contrary to the provisions of the Act, statutes, rules or regulations, etc., a finding has to be recorded and unless such a finding is recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be 34 made as to whether such appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To arrive at such a finding necessarily enquiry will have to be held and in holding such an enquiry, the person whose appointment is under enquiry will have to be issued a notice. If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha case (supra). In such an event we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, statute, rule or regulation etc. and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35(3) in this case will have to be read."
24. In the aforementioned context, when this Court examines the purport of the rule 20 which supports that a non- obsten clause and comments with a proviso laying down giving an opportunity to the government servant an opportunity of making representation against the proposed penalty on the ground of his being convicted on a criminal charge by itself goes to show that the principle of natural justice was sought to be followed and not to be excluded. Thus, this Court has no hesitation in rejecting the said statement of the learned Government Advocate. The learned Government Advocate submits that in the case of inflicting punishment against the government servant on the ground of his 35 being convicted on a criminal charge, no notice is required to be given.
25. As a matter of fact, such notice to a government servant sought to be inflicted penalty on the ground of being convicted on a criminal charge would serve a sanguine purpose inasmuch as first of all he will be in a position to say as to whether he is the person who has been convicted or not and consequently he would be still in a position to pursue that though he is convicted, the charge against him in the criminal case was not such which can have straightaway led to drawing adverse inference against his conduct of his being government servant. This Court may elucidate this aspect that a person about whom the government or the appointing authority comes to know from any source that he has been convicted and, therefore, had proceeds to inflict an order of punishment, even if he is not the person and some other person by the same name was convicted in the criminal case would at least give that government servant an opportunity to say actually such order of conviction was never passed against him and that he was never subjected to any criminal trial. Yet again, that government servant against whom such penalty is sought to be inflicted will be in a position to say that such charge was actually not in any way such a misconduct even as per the Rules which require inflicting of a punishment. For example, a government servant driving a car parks it in a non-parking zone and is convicted by imposing a fine. Now, if that government servant is not to be given an opportunity by way of notice and/or making representation against the proposed penalty, he would be actually punished even for such a 36 charge which does not amount to misconduct as per the Conduct Rules. There may be any number of examples and specially when the principle of natural justice does not loose their application on the ground that hearing would make no difference. Judged from this angle, this Court is of the view that it would really serve the ends of justice if a convicted government servant is at least afforded an opportunity by way of notice to submit his explanation as with regard to the factum and the nature of his conviction on a criminal charge which infact is also sought to be achieved by the expressed provisions made in second proviso to rule 20 of the Rules.
26. The reliance placed by the learned Government Advocate in the case of Tulsi Ram (supra) will have no application on the facts of this case because that case was basically arising out of a situation which is contemplating under rule 20(ii) of the Rules inasmuch as in those cases the government had come to a specific finding while inflicting punishment against those remaining members of the force, who had participated in a riot without holding of departmental proceeding by way of a regular enquiry against them was not possible. The case of Tulsi Ram is not an authority relating to inflicting of punishment on a government servant convicted on a criminal charge.
27. The last submission of the Counsel for the petitioners also merits consideration for a simple reason that in the present case itself, there are two types of conviction and sentence. The petitioner in the first case has been convicted for an offence under Section 307 of the Indian Penal Code and sentence to undergo rigorous 37 imprisonment for a period of five years whereas in the second case the petitioner Vikash Kumar Sharma has been convicted under Section 325 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of one year with a further find of Rs. 500/-. In the second case, it is the defence of the petitioner Vikash Kumar Sharma that on the day of holi festival in the spur of moment some scuffle among the family members which led to the occurrence. Obviously, in the second case, the conduct of the petitioner Vikash Kumar Sharma can not be as grave as that of the petitioner in the first case where allegation against him is substantiated in course of trial leading to his conviction was for a period for causing attempt to murder. True it is that the quantum of the punishment can not be made the subject matter of a judicial review under Article 226 of the Constitution of India as held in the case of B. C. Chaturvedi vs. Union of India and others, reported in (1995) 6 Supreme Court Cases 749 but if the punishment is disproportionate, the writ court can definitely ask the disciplinary authority to reconsider its decision. In the second case, on the facts read in the light of the judgment of the conviction it can not be said that only penalty of removal was adequate. The petitioner Vikash Kumar Sharma infact could have been given even a lesser punishment if he had been given an opportunity to explain himself. This Court, however, would not express any opinion on the quantum of the punishment as it has found the order of punishment itself to be bad on the ground of violation of the principles of natural justice.
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28. This Court can not lose sight of the fact that both the petitioners are teachers and must have the highest regard for law and must possess the moral character of the highest character. This Court again would not like to lay down the law that conviction in cases arising out of serious charge under Section 302, 307, and other allied sections of the of the Indian Penal Code may not involve the element of moral turpitude.
29. It, however, would require an application of mind by the disciplinary authority in each case as to what was the charge in the criminal case and whether on account of bringing of such charge in the criminal case leading to conviction where the government servant has rendered himself unfit to continue in government service or become entitle to be given certain punishment lesser than removal or dismissal from service. This much has to be looked into by the disciplinary authority and was held in the case of Union of India vs. Parma Nanda, reported in AIR 1989 SUPREME COURT 1185 wherein the Apex Court has held as follows :-
29. We may, however, carve out one exception to this proposition. There may be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled 39 for, having regard to the nature of the criminal charge, the tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under clause (a). This power has been conceded to the court in Union of India v. Tulsiram Patel, AIR 1985 SC 1416.
"Where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what the penalty should be .........................................The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was to severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been infact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of 40 that particular government service the court will also strike down the impugned order. Thus, in Shankar Das v. Union of India (AIR 1985 SC 772) this court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case."
30. Thus, having given anxious consideration, this Court is of the view that the impugned orders in both the cases can not be sustained and accordingly both the impugned orders in these two cases are hereby quashed and the matter is remitted back to the Director, Secondary Education who now will issue a show caused notice in terms of second proviso to rule 20 of the Rules and would thereafter take appropriate decision in accordance with law within a period of six months from the date of receipt/production of a copy of this order.
31. However, in the peculiar facts of these cases, there would be no order as to costs.
( Mihir Kumar Jha, J.) Patna High Court Dated,the 14th May, 2010 AFR/Anand