The main legal point established in the judgment is that the competent authority must exercise discretion in determining the suitability of the employee for retention in government service based on the conduct leading to the conviction, and the removal from service is not automatic.

JUDGMENT

B.S. Walia, J. - Prayer in the writ petition is for the issuance of a writ of Certiorari for quashing order Annexure P/3 dated 19.06.2015, whereby the petitioner was removed from the rolls of the department on account of his conviction in case FIR No.322 dated 13.08.2010, U/s 323, 324, 452 read with Section 34, Indian Penal Code, by the Court of Ms. Neelam Kumari, learned Judicial Magistrate 1st Class, Gohana.

2. Brief facts of the case leading to the writ petition are that the petitioner was appointed as Chowkidar on daily wage basis on 02.11.1988 in Haryana Roadways and was brought on the regular establishment w.e.f. 01.01.1996. On 13.08.2019, FIR No.322 dated 13.08.2010, for offences punishable under Sections 323, 324, 452 read with Section 34, IPC was registered against the petitioner and his family members at Police Station Gohana, on the basis of a complaint made by the petitioners neighbor. Pursuant to trial, the petitioner and his family members were convicted under Sections 323, 324, 452 read with Section 34 of IPC, vide judgment dated 08.12.2014 and sentenced to undergo imprisonment and pay fine vide order dated 09.12.2014.

3. Learned counsel contends that the conviction of the petitioner under Section 323, 324, 452 read with Section 34 of IPC does not constitute an offence involving moral turpitude, besides the impugned order was passed solely on the basis of conviction and that too without issuing any show cause notice, therefore the impugned order is unsustainable and liable to be set aside. Reliance is placed on the decision of a Division Bench of this Court in case titled as State of Haryana and another versus Ram Chander, (2013) 2 SCT 95 as well as of a Coordinate Bench in Ram Niwas versus State of Haryana and others,2018 4 PunLR 615 .

4. Learned Sr. Deputy Advocate General on the other hand contended that the petitioner was rightly removed from service in terms of Article 311 (2) (a) of the Constitution of India, without issuance of show cause notice, on account of his conviction of a criminal offence, therefore, the impugned order did not warrant interference.

5. I have considered the submissions of learned counsel.

6. Article 311 of the Constitution of India is reproduced as under:-

Article 311 of the Constitution Of India :

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

(1) No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges :

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed :

Provided further that this clause shall not apply

(a) 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; or

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause ( 2 ), the decision thereon of the authority empowered to di