Madhya Pradesh High Court
Balwan Singh vs The State Of Madhya Pradesh Judgement ... on 13 November, 2013
1
Writ Petition No.19303/2013
13.11.2013
Shri K.D.Singh, learned counsel for petitioner.
Shri Devashish Sakalkar, Panel Lawyer for
respondent/State on advance notice.
Heard.
Order dated 21.01.2011 is being assailed vide this petition whereby the petitioner, a Moharrir (Assistant Revenue Inspector) Nagar Panchayat, Baikunthpur, Rewa has been dismissed from service on his being convicted for offences under Sections 452, 148, 323/149 and 302/149.
It is urged that the said dismissal order has been passed without affording any opportunity of hearing to the petitioner. It is not disputed by learned counsel for petitioner that provisions of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 are applicable by virtue of Rule 52 of the Madhya Pradesh Municipal Employees (Recruitment and Conditions of Service) Rules, 1968.
Rule 19 of the Rules 1966 stipulates :
"19. Special procedure in certain cases.- Notwithstanding anything contained in rule 14 to rule 18:-2
Writ Petition No.19303/2013
(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 it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the Governor is satisfied that in the interest of the security 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 Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule."
That, a Full Bench of this Court in Laxmi Narayan Hayaran Vs. State of Madhya Pradesh and another 2004 (4) MPHT 343 (FB) while relying upon the aspect, held that an employee who has been convicted for an offence punishable under the provisions of Indian Penal 3 Writ Petition No.19303/2013 Code is not entitled for any opportunity of hearing before being dismissed from service. It has been held :
"9. Rule 19 of the Central CCA Rules was amended in 1987 after the decision in Tulsiram Patel providing for an opportunity of making a representation in regard to the penalty proposed to be imposed. After such amendment, Rule 19 of the Central CCA Rules came up for consideration before a three Judge Bench of the Supreme Court in Sunil Kumar Sarkar (supra). Having regard to the amended provisions of Rule 19 of the Central CCA Rules, the Supreme Court held that a show-cause notice should be given to the employee in regard to the proposed punishment giving an opportunity to the delinquent employee, to make a representation. The decision did not refer to either Challappan (supra) or Tulsiram Patel (supra). The decision in Sunil Kumar Sarkar (supra) can not, therefore, be said to be a reiteration of the principle in Challappan (supra), which was specifically over ruled by the Supreme Court in Tulsiram Patel (supra). It only exposits Rule 19 as it stands after amendment subsequent to the decision in Tulsiram Patel (supra). The Court neither re-
considered the principles laid down in Tulsiram Patel (supra), nor expressed any view contrary to Tulsiram Patel (supra). In fact a three Judge 4 Writ Petition No.19303/2013 Bench could not re-affirm a view which has been expressly overruled by a Constitution Bench. Therefore, the conclusion in Sheetal Kumar Bandi (supra) that the view expressed in Challappan (supra), though over-ruled in Tulsiram Patel (supra) has been re-affirmed in Sunil Kumar Sarkar (supra) and, therefore, the decision of this Court in Tikaram Windwar v. Registrar, Co-operative Societies, M.P. (1978 MPLJ 57) still holds ground, is wholly erroneous.
10. Rule 19 of the State CCA Rules is similar to Rule 14 of Railway Rules considered in Challappan (supra) and unamended Rule 19 of Central CCA Rules considered in Tulsiram Patel, which did not provide for any opportunity of hearing in regard to the penalty to be imposed. In Tulsiram Patel (supra), the Supreme Court has categorically held that no opportunity need be given to the employee concerned, but the disciplinary authority, on consideration .of the facts and circumstances (in the manner set out in Challappan and Tulsiram Patel) may impose the penalty. It was also clarified that if the penalty imposed was whimsical or disproportionately excessive, the same was open to correction in judicial review. The subsequent decision of the Supreme Court in Sunil Kumar Sarkar (supra) dealt with the 5 Writ Petition No.19303/2013 amended Rule 19 of the Central CCA Rules which provided for a hearing. Therefore, the principle laid down in Sunil Kumar Sarkar (supra) can not be of any assistance in interpreting Rule 19 of the State CCA Rules in the absence of an amend- ment in the State CCA Rules corresponding to the amendment made in the Central CCA Rules. As the State CCA Rules stand today, the law applicable is as laid down in Tulsiram Patel (supra) and not as laid down in Sunil Kumar Sarkar.
11. We accordingly overrule the decisions of the Division Bench in Tikaram (supra) and Sheetal Kumar Bandi (supra), in so far as they hold that the delinquent employee should be given a notice giving an opportunity to put forth his views as to the penalty proposed to be imposed.
12. The second premise in the Sheetal Kumar Bandi (supra) that in exercise of the power of judicial review, the Court can examine whether there was consideration of the relevant facts and circumstances by the disciplinary authority in imposing the penalty and correct the penalty if it is excessive, is in consonance with the decisions of the Supreme Court in Challappan, Shankar Dass, Tulsiram Patel and Sunil Kumar Sarkar (supra). If the conviction is for any minor offence which does 6 Writ Petition No.19303/2013 not involve any moral turpitude, a punishment of removal or dismissal from service will certainly be excessive. But where the conviction is on the ground of corruption, as in this case, there can be no two views that imposition of punishment byway of dismissal is just and proper and not excessive.
13. The order dated 16-4-2004 passed under Rule 19 of the State CCA Rules imposing the penalty of dismissal on the petitioner can not be said to be excessive. The order does not suffer from any infirmity. In view of the aforesaid, the writ petition is dismissed."
In view of above proposition of law laid down by Full Bench of this Court in Laxmi Narayan Hayaran Vs. State of Madhya Pradesh and another (supra) and the fact that the petitioner has been convicted for offences punishable under Sections 452, 148, 323/149 and 302/149 which has paved way for dismissal from service; no interference is caused.
Petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE anand