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2003(1) JLJ 48
Deepak Verma and N.K. Jain, JJ.
State of M.P. and another v. Dr. Sheetal Kumar Sandi and others
W.P. No. 785 of 2000; against the order of State Administrative
Tribunal, Indore, passed in OA No. 1611 of 1999;
Decided on 12.8.2002.
Respondent-Dr. Bandi, on the date of his removal, was working on the post of Professor, Surgery (Pediatrics) in M.G.M. Medical College, Indore, a Government institution. He, amongst others, was prosecuted on the charge under section 337 of the Indian Penal Code, for being negligent in performing operation on a two year old healthy child mistaking him for another child who was to be operated upon for Hernia. After trial, he was convicted by the Magistrate for the said charge and sentenced to six months rigorous imprisonment with fine Rs. 500/-. On appeal, the conviction was affirmed but the sentence of imprisonment was set aside leaving the sentence of fine unaltered, by Additional Sessions Judge, Indore, vide his judgment dated 10.5.1999 in Criminal Appeal No. 175/1998. Following this conviction and taking recourse to rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and after consulting the State Public Service Commission, the State Government, on 28.9.1999, imposed major penalty of removal on the respondent. The respondent challenged his removal before the SAT by filing an application (OA No. 1611/1999) which has been allowed and the impugned removal has been quashed with all consequential benefits to the respondent, vide order dated 31.1.2000 which is under challenge before this Court. [Para 2
Held: The State Government did not seem to have acted justly and the penalty of removal imposed upon the respondent, in the facts and circumstances of the case, appeared arbitrary, rather, whimsical. It is really a matter of pity that a person having put in blotless career as a Surgeon for nearly 34 years should, at the fag end of his career, be dealt with so shabbily for a one-time mistake of his life for which the Court itself has taken a lenient view and released him under the provisions of the Probation of Offenders Act. The Disciplinary Authority in the instant case, seems to have acted with a pre-determined mind. [Para 8
(2) Probation of Offenders Act, 1958 -- Ss. 3 and 12 -- offence under S. 337, IPC for operation on wrong person -- doctor given benefit under S. 3 -- not entitled to any relief under S. 12 -- but facts and circumstances to be taken in consideration before imposition of any penalty.
The respondent has been released by this Court after due admonition u/s 3 of the Probation of Offenders Act. Court has noted that though the respondent Doctor was guilty of not exercising the due care and caution, nevertheless, several other factors had contributed equally in performance of the said operation by him on a wrong person. While section 12 of the Probation of Offenders Act is of no avail to the respondent employee, the facts and features of the case were very relevant and required to be taken into consideration before imposition of any penalty. [Para 7
(3) Civil Services (Classification, Control and Appeal) Rules, 1965 (Central) -- R. 19 -- conviction of Government servant on criminal charge – he should be given opportunity of making representation on question of penalty proposed to be imposed departmentally.
"The Disciplinary Authority can make such order as it deems fit (dismissal from service is one such order contemplated under rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2) (a). Rule 19 of the Central Rules is in conformity with the above provision of the Constitution. This, as we see, is a summary procedure provided to take disciplinary action against a government servant who is already convicted in a criminal proceedings." 2001(2) Supreme Today 199 followed. [Para 9
(4) Constitution of India -- Art. 311(2) (a) -- M.P. Civil Services (Classification Control and Appeal) Rules, 1966 -- R. 19 -- conviction of civil servant -- even if R. 19 does not provide for second opportunity against conviction, the same is contemplated under Art. 311(2) (a) of the Constitution -- State Rules must be in conformity with the Constitution.
It is true that although rule 19 of the State Rules does not in terms provide for any such second opportunity of making representation against the proposed penalty, as is available under the rule 19 of the Central Rules, nevertheless, as held by the Supreme Court in Sunil Kumar (2001(2) Supreme Today 119], "this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311 (2) (a)". So any State Rule has to be in conformity with the above provision of the Constitution. 2001(2) Supreme Court 199 followed. AIR 1985 SC 1416 held resiled from and AIR 1975 SC 2216 held reaffirmed in 2001(2) Supreme Today 199. 1978 JLJ 201 relied on. [Para 10
(5) Civil Services (Classification, Control and Appeal) Rules, 1966 (M.P.) -- R. 19 -- Constitution of India -- Art. 311(2) (a) -- provisions for punishment under -- are enabling -- do not enjoin disciplinary authority to impose extreme penalty of dismissal in every case. [Para 11
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¼3½ flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1965 ¼dsanzh;½ && fu- 19 && ljdkjh deZpkjh dh nkafMd vkjksi ij nks"kflf) && foHkkxh; :i ls ml ij vf/kjksfir dh tkuk izLrkfor ‘kkfLr ds iz‘u ij mls vH;kosnu djus dk volj fn;k tkuk pkfg,A
^^vuq‘kklu izkf/kdkjh] vuq‘kklu dk;Zokgh izkjaHk djus vkSj vipkjh vf/kdkjh dks vf/kjksfir dh tkuk izLrkfor ‘kkfLr ij vH;kosnu djus dk volj iznku djus ds i‘pkr~ ,slk vkns‘k ikfjr dj ldrk gS tSlk og mi;qDr le>s ¼fu;e 19 ds v/khu vuq;kr lsok ls inP;qfr ,slk vkns‘k gS½A oLrqr%] vuq‘kklu izfØ;k dk ,slk izdkj Lo;a lafo/kku esa vuq/;kr gS tSlk vuqPNsn 311¼2½ ¼d½ esa ns[kk tk ldrk gSA dsanzh; fu;eksa dk fu;e 19 lafo/kku ds mi;qZDr mica/k dh vuq:irk esa gSA tSlk ge le>rs gSa] ,sls ljdkjh lsod ds fo:) vuq‘kklu dkjZokbZ djus ds fy, tks igys&gh fdlh nkafMd dk;Zokgh esa fl)nks"k Bgjk;k x;k gS] ;g laf{kIr izfØ;k gSA** 2001¼2½ lqizhe VqMs 199 vuqlfjrA ¿ iSjk 9
¼4½ Hkkjr dk lafo/kku && vuq- 311¼2½ ¼d½ && e-iz- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e] 1966 && fu- 19 && flfoy lsod dh nks"kflf) && Hkys&gh fu;e 19 esa nks"kflf) ds fo:) f}rh; volj micaf/kr ugha gks] og lafo/kku ds vuq- 311¼2½ ¼d½ ds v/khu vuq/;kr gS && jkT; fu;e lafo/kku dh vuq:irk esa gksuk gh pkfg,A
;g lR; gS fd ;|fi jkT; fu;eksa ds fu;e 19 dh Hkk"kk esa izLrkfor ‘kkfLr ds fo:) vH;kosnu djus ds ,sls fdlh nwljs volj dk micaf/kr ugha gS] rFkkfi] lquhy dqekj ¿ 2001¼2½ lqizhe VqMs 119 À mPpre U;k;ky; }kjk ;Fkk vfHkfu/kkZfjr] ^^bl izdkj dh vuq‘kklu izfØ;k Lo;a lafo/kku vuq/;kr gS tSlk vuqPNsn 311¼2½ ¼d½ esa ns[kk tk ldrk gSA** vr% jkT; dk dksbZ Hkh fu;e Hkkjrh; lafo/kku ds mDr mica/k dh vuq:irk esa gksuk gksxkA 2001¼2½ lqizhe VqMs 199 vuqlfjrA 2001¼2½ lqizhe VqMs 199 esa , vkb vkj 1985 ,l lh 1416 izR;kâr vfHkfu/kkZfjr rFkk , vkb vkj 1975 ,l lh 2216 iqu% vfHkiq"V vfHkfu/kkZfjrA 1978 ts ,y ts 201 voyafcrA ¿ iSjk 10
Jain, J. -- This petition under Article 226/227 of the Constitution of India, filed by the petitioners-The State of Madhya Pradesh and the Dean, M.G.M. Medical College, Indore - is directed against the order dated 31.1.2000. passed by the Indore Bench of M.P. State Administrative Tribunal, (for short, 'the SAT') quashing the order of removal of respondent No.1 Dr. Sheetal Kumar Bandi, passed by the State Government on 28.9.1999.
2. Respondent Dr. Bandi, on the date of his removal, was working on the post of Professor, Surgery (Paediatrics) in M.G.M. Medical College, Indore, a Government institution. He, amongst others, was prosecuted on the charge under section 337 of the Indian Penal Code, for being negligent in performing operation on a two year old healthy child mistaking him for another child who was to be operated upon for Hernia. After trial, he was convicted by the Magistrate for the said charge and sentenced to six months rigorous imprisonment with fine Rs. 500/-. On appeal, the conviction was affirmed but the sentence of imprisonment was set aside, leaving the sentence of fine unaltered, by Additional Sessions Judge, Indore, vide his judgment dated 10.5.1999 in Criminal Appeal No. 175/1998. Following this conviction and taking recourse to rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, 'the State Rules') and after consulting the State Public Service Commission, the State Government, on 28.9.1999, imposed major penalty of removal on the respondent. The respondent challenged his removal before the SAT by filing an application (O.A. No. 1611/1999) which has been allowed and the impugned removal has been quashed with all consequential benefits to the respondent, vide order dated 31.1.2000 which is under challenge before this Court.
3. The SAT has quashed the order mainly on the ground that no opportunity of hearing was accorded to the respondent-employee to show cause against the proposed penalty which was imposed even when the revision filed by the respondent against his conviction was pending before the High Court.
4. We have heard Shri Z.A. Khan, learned Additional Advocate General for the petitioner State and Shri Amit Agrawal, learned counsel for the respondent-employee.
5. Shri Khan, learned A.A.G. has assailed the order of SAT as contrary to law. He submitted that after the 42nd Amendment of the Constitution, Article 311, as it stands after amendment, now no more required that any second 0pp0l1unity of making representation at the stage of imposing penalty should be given to the delinquent employee. Rule 19 of the State Rules, 1966 also did not postulate any such opportunity. It was further contended that the State Government was not obliged in law to wait for the result of the criminal revision filed by the respondent inasmuch as no stay was granted by the High Court in that revision. He has placed reliance on a Supreme Court decision in Tulsiram (AIR 1985 SC 1416).
As against it, Shri Amit Agrawal, learned counsel for the respondent strongly defended the order of the SAT and submitted that notwithstanding the said amendment in Article 311 of the Constitution or of rule 19 of the State Rules, it was still necessary to offer the respondent an opportunity of making representation on the penalty proposed to be imposed. He submitted that although clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government power to dismiss or remove a person from service on the ground of conduct which has led to his conviction on a criminal charge, but that power, like any other power, has to be exercised fairly, justly and reasonably. The respondent was entitled to demonstrate to the Disciplinary Authority that the penalty of dismissal or removal was not warranted and it was wholly disproportionate to the charge for which he was convicted by the Court. Reliance is placed on Supreme Court decisions in Shankar Dass (AIR 1985 SC 772) and Sunil Ku
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