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2010 Supreme(P&H) 3057
PUNJAB & HARYANA HIGH COURT
Ranjit Singh, J.
Des Raj
Versus
State Of Haryana
CIVIL WRIT PETITION No. 19987 of 2009,
Decided On : NOVEMBER 15, 2010
The power to dismiss a person on the ground of conduct leading to conviction must be exercised fairly and justly, considering all circumstances and exercising discretion in imposing penalties.
Headnote:
Conviction - Dismissal from Service - Article 311(2) of the Constitution of India - Sections 323 and 452 IPC - Suspension of sentence - Legal provisions and interpretations
Fact of the Case:
The petitioner, a Ward servant at Civil Hospital, was dismissed from service one day prior to his retirement due to his conviction for offences under Sections 323 and 452 IPC. His conviction was stayed by the court after the dismissal order.
Finding of the Court:
The court found that the authorities did not consider the nature of the offences and the possibility of imposing a lesser punishment. The dismissal was deemed unfair and not in accordance with the legal provisions.
Issues: The issues included the authority's power to dismiss a person on account of a stayed conviction, the consideration of the nature of the offence, and the fairness of the dismissal one day prior to retirement.
Ratio Decidendi: The court emphasized that the power to dismiss a person on the ground of conduct leading to conviction must be exercised fairly and justly. It highlighted the need for authorities to consider all circumstances and exercise discretion in imposing penalties.
Final Decision: The court directed the authorities to reconsider the case and pass a fresh order, taking into account the legal position and the possibility of imposing a lesser punishment.
Ranjit Singh, J.
1. A person convicted of at criminal offence can certainly be dismissed from service on account of such conviction. The issue, however, in the present writ petition is slightly different and it relates to the power of the authorities to dismiss a person on account of his conviction for a criminal charge, which is stayed by a court of competent jurisdiction after the order of dismissal has been passed. Is it that the conviction for each and every offence should lead to dismissal or that nature of offence alleged is to be considered while passing any such order is another question arising in this case.
2. The petitioner was serving in the Health Department as a Ward servant at Civil Hospital, Ambala. He was sentenced to undergo two years RI for his conviction for an offence under Section 323 IPC and similar sentence for conviction under Section 452 IPC coupled with fine of Rs.500/-. In default of payment of fine, the petitioner was required to undergo five months imprisonment in addition. The petitioner challenged his conviction and sentence by filing a criminal appeal before this court on 20.4.2006. This Honble Court was pleased to suspend the sentence on.28.3.2006. Upon release on bail, the petitioner was taken back in service and continued to perform his duties for almost three years. When the petitioner became due for retirement on 27.2.2009, he was surprised to receive an order dismissing him from service just one day prior to his date of retirement on the ground that petitioner has been sentenced and convicted in a criminal case. The petitioner thereafter filed a criminal misc petition before this court in the criminal appeal filed by him challenging his conviction and sentence. This court stayed the conviction of the petitioner on 16.7.2009. The petitioner accordingly filed application on 23.7.2009 for recall of the impugned order of his dismissal passed on 27.2.2009 and thereafter filed this writ petition when no action was taken on his representation.
3. Respondents have filed reply and would justify the order of dismissal due to conviction of the petitioner for offences under Sections 323 and 452 IPC. As per the respondents, the offence under Section 452 IPC, for which the petitioner has been convicted, is a serious offence and is an offence involving moral turpitude and so such a person could not be kept in service. The respondents, thus, would justify the impugned order to be perfectly legal, valid and as per the law. To explain the delay in passing the order during which period the petitioner was allowed to perform duties, it is stated that the order was passed after seeking legal opinion and consequently there was delay in passing the impugned order for which the petitioner cannot take any advantage.
4. Considering that the respondents apparently did not apply their mind to the complete factual position, the State counsel was required to have instructions if the order of dismissal a day prior to the date of retirement could be termed as fair when his conviction was stayed though subsequently. As per the State counsel, the action of the State was considered justified.
5. Article 311 (2) of the Constitution of India declares that no person, who is a member of the civil service of the Union or All-India service or a civil service of a State or holds a post under the Union or a State shall be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and is given a reasonable opportunity of being heard in respect of those charges. The second proviso to the said Article, however, carves out three exceptions. The second proviso with which we are concerned in the present case provides that where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge, then the requirement of holding enquiry to order dismissal etc. shall not apply.
6. This clause, as noticed above, t
