Madhya Pradesh High Court
Sita Ram Sharma vs The State Of Madhya Pradesh on 18 August, 2017
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice Subodh Abhyankar,J
WRIT PETITION NO.8645 OF 2016
Sita Ram Sharma.
Vs.
State of Madhya Pradesh & others.
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Shri D.K.Dixit, learned counsel for the petitioner.
Shri Punit Shroti, learned Panel Lawyer for the respondents-
State.
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Whether Approved for Reporting: Yes.
Law Laid Down: (i) If the petitioner is convicted and his
appeal is pending before this Court, the benefit of Rule 19 of
the MP Civil Services (CCA Rules) 1966 would still be
available to the petitioner taking his conviction to be final
provided he satisfies the conditions contained in Rule 19.
Significant Paragraph Nos.6 and 7.
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ORDER
(Passed on the 18th day of August, 2017) The present petition has been filed by the petitioner against the order dated 7.4.2016 (Annexure P-14) passed by the respondent No.1 whereby his services have been terminated on the ground of his conviction in a criminal case for commission of offence punishable under Sections 323, 341 of IPC.
2. In brief the facts of the present case are that the petitioner was initially appointed on the post of Lecturer in the year 1984 and was promoted on the post of Principal, High School in the year 2007, and was further promoted on the post of Principal, Higher Secondary School in the year 2007.
3. It is submitted by the learned counsel for the petitioner that the petitioner was dragged in a criminal case for commission of offence punishable under Sections 323 and 341 of IPC in ST No.243/2002 relating to the incident which took place between the brothers of the petitioner in a domestic dispute in which the petitioner has also lost his son, but a counter FIR has also been lodged against him in which he is convicted for commission of offence punishable under Sections 323 and 341 of IPC and is sentenced to one monthâs R.I. under Section 341 of IPC and six monthsâ R.I. under Section 323/34 of the IPC. The petitioner has challenged his conviction by filing Criminal Appeal No.132/2007 before this Court, which is still pending. It is further submitted that after his conviction in the aforesaid case, his brother and his sons approached the authorities for removal of the petitioner on the ground of his conviction and in this regard WP No.18711/2012 was also filed before this Court, which was disposed of vide order dated 7.11.2012 with a direction to the respondents to examine and matter and pass a reasoned order. Subsequently a show cause notice was issued and petitioner submitted his reply to the said notice on 3.12.2012 and the final order was passed on 19.11.2014 whereby the services of the petitioner have been dismissed. Being aggrieved with the said order, the petitioner preferred WP No.19007/2014 and this Court vide order dated 19.11.2014 quashed the order dated 19.11.2014 with a direction to the respondents to pass a fresh order after affording an opportunity of hearing to the petitioner for continuing of his service. It was also observed that the services of the petitioner be also regularized in terms of the Fundamental Rule 54 and appropriate order be passed in the matter of reinstatement of the petitioner in service. After the aforesaid order was passed, the final order has been passed by the respondent No.4 on 7.4.2016 whereby the representation preferred by the petitioner has been rejected on the ground that he is involved in a criminal case. In support of his contention, learned counsel for the petitioner has relied upon the judgment of Honâble Apex Court in the case of State of MP Vs. Hazarilal, reported in AIR 2008 SC 1300.
3. In return it is submitted by the learned counsel for the respondents that the impugned order has been passed after due application of mind, and therefore no interference is required by this Honâble Court and the petition filed by the petitioner deserves to be dismissed.
4. Having heard the learned counsel for the parties and perused the record, it is apparent that the petitioner has been convicted under Sections 323 and 341 of IPC and sentenced to RI for six monthsâ RI with fine of Rs.1,000/- and one monthâs RI with fine of Rs.500/- with stipulation of default clause in respect of fine. Section 323 of IPC refers to voluntarily causing simple hurt with maximum punishment for one year or fine of Rs, 1,000/- or both, whereas Section 341 of IPC refers to wrongfully restraining any person and maximum punishment is one monthâs S.I. or fine of Rs.500/- or both. From the documents it is also apparent that in the incident the petitionerâs son has also lost his life and an FIR against the assailants has also been registered.
5. Both the aforesaid Sections viz. Sections 341 and 323 of the IPC cannot be termed as offences involving more turpitude. So far as the conviction of the petitioner is concerned, as already stated above that in the incident petitionerâs son was also got murdered and the role assigned to the petitioner in S.T.No.234/2002 by the trial Court in para 17 is summed up as under:-
^^17& mHk;i{k dh lk{; dh leh{kk djus ls tcfd igys vijk/k vkjksihx.k fâkosUnz] /khjsUnz] ;knosUnz] gjsjke }kjk fd;k x;k vkSj lhrkjke] vkuanâkadj] fot;âkadj] t;y{eh] fot; y{eh] iq"iknsoh dks pksVs gksus ls vkuanâkadj dh e`R;q gksus ij vkjksihx.k us ekjihV dhA ;g rF; bl lk{; ls izekf.kr gks pqdk gSA vr% vfHkys[k ij vkbZ gqbZ lk{; ls /kkjk 341] 323@34] 323@34 Hkk0n0la0 ds rF; izekf.kr gSaA^^ From the aforesaid finding recorded by the trial Court, it can be safely concluded that neither the petitioner was aggressor nor he committed any offence amounting to moral turpitude. In the case of Hazarilal (Supra), the Honâble Apex Court has observed as under:-
â7. By reason of the said provision, thus, the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.
8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.â (Emphasis Supplied)
6. In the case of Hazarilal, he was convicted under Section 323 of the IPC and was sentenced to a fine of Rs.500/- only, whereas in the case at hand, the petitioner has been convicted under Section 341 & 323/34 of the IPC and taking this to be the only distinguishing feature, the respondents have dismissed the claim of the petitioner for reinstatement which in the considered opinion of this Court is bad in law and is in contravention of the ratio of the decision of the Apex Court in the case of Hazarilal (Supra). It appears that the aforesaid two paras 7 & 8 have not even been read by the respondents which has led to the passing of the impugned order. The finding recorded by the respondents that the petitionerâs conviction has not been stayed but only sentence is suspended is also erroneous for the reason that Rule 14(1) itself provides for the treatment to be provided to a government servant, who has been convicted on a criminal charge. Rule 19 of the M.P. Civil Services (CCA Rules), 1966 reads as under:-
â19. Special procedure in certain cases â Notwithstanding anything contained in rule 14 to rule 18 :-
(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.â (Emphasis Supplied)
7. Thus, even if the petitioner is convicted and his appeal is pending before this Court, the benefit of Rule 19 would still be available to the petitioner taking his conviction to be final provided he satisfies the conditions contained in Rule 19.
8. In the result, the impugned order Annexure P/14 dated 07.04.2016 is liable to be and is hereby quashed with a direction to the respondents to reinstate the petitioner in service in accordance with F.R.54 of the Fundamental Rules and also accord all the consequential benefits. The aforesaid exercise must be completed by the respondents within 4 weeks from the date of receipt of certified copy of this order.
9. Petition stands allowed with no order as to costs.
(Subobh Abhyankar) Judge 18/08/2017 Ansari