JUDGMENT :

1. Heard Mr. S Borthakur, learned counsel for the petitioner. Also heard Mr. RM Das, learned standing counsel appearing on behalf of respondent Union of India.

2. The petitioner is aggrieved by an order dated 26.08.2013 whereby the petitioner was dismissed from service in exercise of power under sub clause (2)(a) of the Article 311 of the Constitution of India on the ground that the petitioner has been convicted under section 306/34 IPC by the learned Additional Sessions Judge, Nagaon and was sentenced to undergo rigorous imprisonment of 7 (seven) years with fine of Rs.10,000/-in default to simple imprisonment of 6 months.

3. Subsequently on an appeal being preferred, the said conviction and sentence was modified and the appellate court acquitted petitioner from the charges of offence under Section 306 IPC and convicted the petitioner under section 498 A IPC and was sentenced him to undergo RI for one year.

4. In the aforesaid backdrop, the petitioner preferred a representation before his employer with a request to recall the order of dismissal. Such representation according to Mr. S Borthakur is still pending for consideration.

5. Mr. S Borthakur learned counsel for the petitioner contends that the employer has not applied their mind to the given facts of the present case inasmuch they have not followed the principle as laid down under Rule 10 of the Assam Services (Discipline and Appeal), Rules 1964 in this regard.

6. In this connection, Mr. S Borthakur learned counsel for the petitioner has also relied on the decision of the hon’ble Apex Court rendered in Union of India & others vs Tulsiram Patel and Others reported in (1985) 3 SCC 398 and contends that the parameters laid down under the aforesaid judgment by the hon’ble Apex Court has also not been complied with, while dismissing the petitioner from service. The disciplinary authority has also not exercised their power on the application filed by the petitioner after the conviction was modified by the appellate court.

7. This court has given anxious consideration to the submissions made by the learned counsel for the parties.

8. Rule 10 of the Assam Services Disciplinary & Appeal Rule, 1964 (hereafter referred to as Rules, 1964) prescribes for special procedure in certain cases, which includes a prescription of procedure where a penalty is imposed on a Government servant on the ground of his conduct, which has lead to his conviction on a criminal charge. The principle mandated is that the disciplinary authority should consider the circumstances of the case and pass such order as it deems fit.

9. Article 311 of the Constitution of India provides for certain condition for dismissal, removal or reduction in rank of persons employed in civil capacities under Union or States and it prescribes, amongst others, that no such person shall be dismissed or removed or reduced in rank except after an enquiry. However, there are exceptions to such prescription of enquiry and one of the exceptions is, when a person is dismissed or removed or reduced in rank on the ground of conduct, which led to his conviction on a criminal charge.

10. In the case of Tulsiram Patel (supra), the Hon’ble Apex Court, while dealing with a pari-materia provision of Rules 10 g of the Rules and referring to the earlier decisions of the Hon’ble Apex Court laid down certain proposition of law, which can be called out as follows:

I. The consideration to be made by the employer, while taking a decision to remove, dismiss or to reduce in rank an employer is to apply its mind and consider the entire circumstances of the case in order to decide the nature and extent of penalty to be imposed on the delinquent employee on his conviction on a criminal charge.

II. Such provision confers powers on disciplinary authority to decide whether in the fact and circumstances of a particular case, what penalty, if at all, should be imposed on the delinquent employee.

III. The conviction of the delinquent employee would be taken as su