The employer's discretion in imposing punishment, the validity of the penalty order despite an order of suspension of sentence, and the advisability of retaining a person convicted of corruption in service until the conviction is set aside by a higher forum.

Judgment :

1. The petitioner was serving in the Bharat Coking Coal Limited. A show cause notice was issued to him on 24th June, 2017 on the allegation that while he was working as Chief Manager (Mining)/Project Officer he was caught red handed by CBI while demanding and accepting illegal gratification. A case was registered against him by the CBI, Dhanbad. The petitioner was convicted in the said case.

2. In view of the conviction the petitioner was found guilty of committing serious misconduct under clauses 5.2 and 5.17 of the Conduct, Discipline and Appeal Rules, 1978 (as amended) of the Coal India Limited and was liable to be proceeded against under clause 34.1(i) of the said Rules. The petitioner was directed to show cause as to why appropriate penalty including dismissal from service should not be imposed upon him under Rule 27 of the said Rules.

3. The explanation submitted by the petitioner was not found satisfactory. By an order dated 6th November, 2017 the Chairman-cum-Managing Director, Coal India Limited being the disciplinary authority imposed the order of penalty of dismissal from service with immediate effect.

4. Being aggrieved by the order passed by the disciplinary authority the petitioner preferred an appeal before the appellate authority. By an order dated 27th August, 2018 the appellate authority upheld the order of penalty and dismissed the appeal preferred by the petitioner.

The petitioner is aggrieved by the same.

5. The petitioner submits that it was incumbent upon the employer to initiate a regular disciplinary proceeding prior to passing the impugned order of penalty. Dismissing the petitioner from service without affording him an opportunity of hearing is contrary to the principle of natural justice.

6. The petitioner argues that challenging the order passed by the CBI court he preferred appeal before the High Court and the High Court passed an order of suspension of sentence. As the sentence imposed upon the petitioner has been stayed accordingly the employer ought not to rely upon the said order and ought not to have taken any steps on the basis of the same.

7. The petitioner relies upon the judgment delivered by the Allahabad High Court, Lucknow Bench in the matter of Krishna Gopal Sharma -vs- State of Uttar Pradesh & Ors. reported in 2014(103) FLR 1143 (paragraphs 10, 11 and 12) wherein the court held that when the order of dismissal from service has been passed merely on the basis of conviction and not on the basis of conduct which laid to the conviction then once the order of conviction is stayed the basis of dismissal of the petitioner disappears. The court directed that the petitioner was liable to be reinstated in service.

8. The petitioner further relies upon an order passed by a learned Singh Judge of the Patna High Court on 27th January, 1995 in CWJC 63 of 1994 in Ram Nandan Prasad -vs- State of Bihar & Ors. reported in 1995(1) RLJR 399 wherein the court relying on a Government circular dated 23rd August, 1963 held that the authority was not justified in exercising the power to dismiss the petitioner from service on the ground of conviction in a criminal case.

9. The petitioner prays for setting aside the impugned order of dismissal and prays for reinstatement in service.

10. The learned advocate representing Coal India Limited relies upon the Conduct, Discipline and Appeal Rules, 1978 applicable to the Coal India Executives. Rule 34 lays down the special procedure to be adopted in disciplinary proceedings. Rule 34.1 says that notwithstanding anything done in Rules 29, 30 or 31 the disciplinary authority may impose any of the penalties specified in Rule 27 in any of the following circumstances:

(i) Where the employee has been convicted on a criminal charge or on the strength of facts and conclusions arrived at by a judicial trial.

11. The proviso to the said Rule mentions that the employee may be given an opportunity of making a representation to the penalty proposed to be imposed before any order is