Madhya Pradesh High Court
Mathura Singh Gharwar vs The State Of Madhya Pradesh on 29 July, 2015
1
Writ Petition No.10699/2015
29.07.2015
Shri Prabhakar Singh, learned counsel for petitioner. Shri Manoj Kushwaha, Panel Lawyer for State of Madhya Pradesh on advance notice.
Heard on admission.
Petitioner, a Mali in Udyan Ropani Jiyavan, District Sidhi/Singrauli having been convicted for an offence under Section 306 of the Indian Penal Code of 10 years rigorous imprisonment and Rs.5000/- fine has been dismissed from service by impugned order dated 16.7.2007 under Rule 19(1) of the Madhya Pradesh Civil Services (CCA) Rules, 1966.
The order is being challenged on the ground that no opportunity of hearing has been afforded.
The issue is no more res integra. It has been held by 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 Code is not entitled for any opportunity of hearing before being dismissed from service. It has been held:
2"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 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.3
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 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 4 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 offence punishable under Section 306 of the Indian Penal Code which has paved way for dismissal from service; no interference is caused.
Petition fails and is dismissed. No costs.
(SANJAY YADAV) (JUDGE) vivek tripathi