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Madhya Pradesh High Court

Kamal Kumar Vaidya vs Madhya Pradesh Poorv Kshetra Vidyut ... on 27 June, 2022

Author: Sheel Nagu

Bench: Sheel Nagu

                                                                        1
                                                   IN THE HIGH COURT OF MADHYA PRADESH
                                                                AT JABALPUR
                                                                      BEFORE
                                                          HON'BLE SHRI JUSTICE SHEEL NAGU
                                                                ON THE 27th OF JUNE, 2022

                                                         WRIT PETITION No. 13947 of 2019

                                              Between:-
                                              KAMAL KUMAR VAIDYA S/O LATE MR. OMKAR
                                              PRASAD VAIDYA, AGED ABOUT 58 YEARS,
                                              OCCUPATION: EX GOVERNMENT SERVANT,
                                              R/O WARD NO.4, PURANI BASTI, JUNNARDEO,
                                              DISTRICT CHHINDWARA (MADHYA PRADESH)

                                                                                                     .....PETITIONER
                                              (BY SHRI AJAY KUMAR NANDA, ADVOCATE )

                                              AND

                                      1.      MADHYA PRADESH POORV KSHETRA VIDYUT
                                              VITARAN COMPANY LIMITED THROUGH THE
                                              MANAGING DIRECTOR BLOCK NO.7, SHAKTI
                                              BHAWAN, P.O. VIDYUT NAGAR, RAMPUR,
                                              JABALPUR (MADHYA PRADESH)

                                      2.      SUPERINTENDENT ENGINEER (OPERATION
                                              AND    MAINTENANCE) MADHYA PRADESH
                                              POORVA KSHETRA VIDYUT VITRAN CO. LTD.
                                              JUNNARDEO,    DISTRICT   CHHIDNWARA
                                              (MADHYA PRADESH)

                                      3.      EXECUTIVE ENGINEER (OPERATION AND
                                              MAINTENANCE), MADHYA PRADESH POORVA
                                              KSHETRA   VIDYUT   VITRAN   CO.  LTD.
                                              JUNNARDEO,    DISTRICT    CHHIDNWARA
                                              (MADHYA PRADESH)

                                                                                                   .....RESPONDENTS

(BY SHRI ANKIT AGRAWAL, GOVERNMENT ADVOCATE) This petition coming on for admission this day, th e court passed the following:

SAN ORDER Digitally signed by MOHAMMED MOHSIN QURESHI Present petition filed under Article 226 assails the order dated 03.07.2018 Date: 2022.07.01 17:26:13 IST 2 (Annexure P/6) whereby petitioner has been dismissed from service owing to his conviction rendered on 14.05.2018 u/S.304-A of IPC attracting the sentence of R.I. for two years with fine of Rs.500/-.

2. Aforesaid order has been passed by invoking the provisions of Rule 19(1) of M.P. Civil Services (C.C.A.) Rules, 1966 (for brevity "Rules of 1966") where the employer is empowered notwithstanding Rule 14 & 18 of Rules of 1966 to impose any penalty on the government servant on the ground of conduct, which has led to his conviction on a criminal charge.

3. The criminal charge arose out of an incident which took place on 23.10.2010 when a three years old got electrocuted due to exposed live wire in the house of petitioner.

4. The sole ground raised by learned counsel for petitioner in support of challenge to aforesaid order is that no prior opportunity of being heard was afforded to petitioner before passing of impugned order of dismissal from service.

5. Learned counsel for the respondents on the other hand submits that relevant Rule 19(1) of Rules of 1966 does not postulate any particular prior opportunity of being heard to such an employee, whose services have been dismissed owing to his conviction in the criminal charge. More so, it is submitted that the said order assailed herein is appellable and the petitioner has already preferred an appeal vide Annexure P/10.

6. This Court could have relegated the petitioner to pursue his appeal, but considering the fact that the issue involved is no more res integra in view of decision of Apex Court in Union of India & Others vs. Sunil Kumar Sarkar Signature Not Verified SAN (2001) 3 SCC 414 this Court proceeds to decide the matter on merits.

Relevant portion of said decision is reproduced below for ready reference:-

Date: 2022.07.01 17:26:13 IST 3 "œ8. The Division Bench also found fault with the order of dismissal passed by the disciplinary authority on the ground that the same was solely based on the conviction suffered by the respondent in the court-martial proceedings. The Court in this regard held that the disciplinary authority had a predetermined mind when he passed the order of dismissal. Here again, in our opinion, the Division Bench did not take into consideration Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a government servant on his conviction in a criminal charge, the disciplinary authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provisions of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a government servant who is already convicted in a criminal proceeding. The very foundation of imposing punishment under Rule 19 is that there should be a prior conviction on a criminal charge. Therefore, the question of having a predetermined mind does not arise in such cases. All that a disciplinary authority is expected to do under Rule 19 is to be satisfied that the officer concerned has been convicted of a criminal charge and has been given a show-cause notice and reply to such show-cause notice, if any, should be properly considered before making any order under this Rule. Of course, it will have to bear in mind the gravity of the conviction suffered by the government servant in the criminal proceedings before passing any order under Rule 19 to maintain the proportionality of punishment. In the instant case, the Signature Not Verified SAN disciplinary authority has followed the procedure laid down in Rule 19, hence, we cannot agree with the Division Bench that the said disciplinary authority had any predetermined Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2022.07.01 17:26:13 IST 4 mind when it passed the order of dismissal."ÂÂ​

7. It is true that Rule 19 of Rules of 1966 in express terms does not contemplate grant of any prior opportunity of being heard before invocation of the same, but the duty cast upon the employer while invoking Section 19 of Rules of 1966 is not only to straight away dismiss a convicted employee from service but also to dwell upon the aspect as to which of the penalties prescribed in Section 10 would be the most commensurate in the given facts and circumstances.

8. Such an exercise involves application of mind on the part of the employer by considering various relevant factors i.e. nature of the offence, whether the offence involves moral turpitude or not, involvement of the petitioner in said offence and it's extent etc.. These factors which are merely illustrative and not exhaustive have to be taken into account by the employer, and therefore, it necessarily involves an enquiry, which inherrently obliges the employer to know the stand of the employee concerned against whom the order is likely to be passed especially in regard to quantum of punishment. There may be a situation where the offence is of such nature where dismissal may be harsh and even a lessor punishment can be imposed which may be commensurate to the gravity of the offence.

8.1 The employer in the present case has not undertaken any such exercise as is evident from a bare reading of impugned order (Annexure P/6) and has straight away dismissed the petitioner from service on the basis of conviction and sentence.

9. This Court is bolstered in its view in view of decision of Apex Court in Signature Not Verified SAN Sunil Kumar Sarkar (supra).

10. In view of above discussion, this Court has no hesitation to truncate 5 the impugned order herein, and therefore, the petition is allowed with following directions:-

(1) impugned order dated 03.07.2018 (Annexure P/6) passed by respondent No.3 stands quashed.

(2) Petitioner is directed to be reinstated in service with all consequential benefits in accordance in law.

(3) Employer is at liberty to proceed in the matter in accordance with law under the provisions of Rules of 1966 and keeping in view the decision of Apex Court in Sunil Kumar Sarkar (supra).

With the aforesaid directions, this petition is allowed.

(SHEEL NAGU) JUDGE mohsin Signature Not Verified SAN Digitally signed by MOHAMMED MOHSIN QURESHI Date: 2022.07.01 17:26:13 IST