With the consent of the parties, the matter is heard finally.
1. This Writ Petition has been filed challenging the order dated 04.10.2018 (Annexure-P/4), whereby, the petitioner was terminated from the post of Principal, Government Higher Secondary School, Dhanouli on account of his conviction vide judgment dated 30.08.2017 passed by Special Judge (Prevention of Corruption Act) in Special Case No.141/2015. In the said case he was convicted under Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and sentenced to undergo RI for 4 years and 5 years, respectively, with default stipulations. The petitioner has also challenged the aforesaid conviction and sentence before this Court in CRA No.1505/2017, whereby, this Court vide order dated 10.11.2017 suspended the execution of sentence and directed to release him on bail.
2. Learned counsel for the petitioner submits that prior to passing of the impugned termination order dated 04.10.2018 on the basis of conviction, no opportunity of hearing was afforded to the petitioner and even the respondents did not issue any show cause notice to him and without contemplating any departmental enquiry, he was dismissed from the post of Principal, Government Higher Secondary School. It is next submitted that the order passed by the respondents is in clear violation of service law as well as rights of Government servant stipulated in Constituted of India. In support of his contention, he places reliance on the judgment rendered by the High Court of Gujrat at Ahmadabad in the matter of Ramsingbhai Vs. State of Gujrat (Civil Application No.22629/2019). He also places reliance in the matter of Vishwanath Vishwakaram Vs. State of UP passed in WA No.4422/2015 (Neutral Citation No.2023:AHC-LKO:59434). In view of the above, he prays to quash the termination order (Annexure-P/4) and allow the instant petition.
3. On the other hand, learned counsel for the State submits that Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for brevity “CCA Rules, 1966”) provides special procedure in certain cases and Rule 19 (1) categorically stipulates that when a person has been found convicted on a criminal charge, no enquiry is required. He submits that the only requirement is that the disciplinary authority shall consider the facts and circumstances of the case and it may make such orders thereon as it deems fit and the proviso also stipulates that the commission shall re-consult where the consultation is necessary. He further submits that in the instant case, the petitioner has been convicted on the charge of corruption for accepting the bribe and after consultation from CGPSC, looking to the gravity of offence and misconduct of the petitioner, as a major punishment dismissal was awarded to the petitioner by way of impugned order, which is not excessive and same is just and proper. He next submits that similar issue has been decided and princples have been laid down by the Full Bench of High Court of Madhya Pradesh in the matter of Laxmi Narayan Hayaran Vs. State of MP and anr 2004 SCC Online MP 356 : ILR 2004 MP 1012. Therefore, he prays to dismiss the petition.
4. Heard learned counsel for the parties and perused the material available on record along with case laws relied upon by counsel for the the parties.
5. Article 311 of the Constitution of India has been enacted with regard to dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. It provides a reasonable opportunity of being heard in respect of charges before passing of any order. However, Proviso (a) of the aforesaid Article clearly stipulates that the said clause shall not apply 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.
6. Rule 19 of the CCA Rule, 1966 provides procedure in respect of criminal charge upon the Government servant in certain cases. For ready reference same is quoted hereunder:-
“19. Special procedure in certain cases. - Notwithstanding anything contained in Rule 14 to Rule 18 :-
(i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, or
(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these rules, or
(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these rules,
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit;
Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this rule.”
7. Apart from the aforesaid, the Full Bench of the High Court of Madhya Pradesh in the matter of Laxmi Narayan Hayaran (supra) after examining the Rule 19 (1) of the CCA Rules, 1966 categorically held that in absence of any such provisions in Rules, no opportunity need to be given. The following was materially observed in the aforesaid judgment:-
“Rule 19 of the Central CCA Rules was amended in 1987 after the decision in Tulsiram Patel providing for an opportunity of making a representation in regard to the penalty proposed to be imposed. After such amendment, Rule 19 of the Central CCA Rules come up for consideration before a three Judge Bench of the Supreme Court in Sunil Kumar Sarkar. Having regard to the amended provisions of Rule 19 of the Central CCA Rules, the Supreme Court held that a show-cause notice should be given to the employee in regard to the proposed punishment giving an opportunity to the delinquent employee, to make a representation. The decision did not refer to either Challappan or Tulsiram Patel. The decision in Sunil Kumar Sarkar can not, therefore, be said to be a reiteration of the principle in Challappan, which was specifically over ruled by the Supreme Court in Tulsiram Patel. It only exposits Rule 19 as it stands after amendment subsequent to the decision in Tulsiram Patel. The Court neither re-considered the principles laid down in Tulsiram Patel, nor expressed any view contrary to Tulsiram Patel. In fact a three Judge Bench could not re-affirm a view which has been expressly overruled by a Constitution Bench. Therefore, the conclusion in Sheetal Kumar Bandi that the view expressed in Challappan, though over-ruled in Tulsiram Patel has been re-affirmed in Sunil Kumar Sarkar and, therefore, the decision of this Court in Tikaram Windwar v. Registrar, Co-operative Societies, M.P. (1978 MPLJ 57) still holds ground, is wholly erroneous.
Rule 19 of the State CCA Rules is similar to Rule 14 of Railway Rules considered in Challappan and unamended Rule 19 of Central CCA Rules considered in Tulsiram Patel, which did not provide for any opportunity of hearing in regard to the penalty to be imposed. In Tulsiram Patel, the Supreme Court has categorically held that no opportunity need be given to the employee concerned, but the disciplinary authority, on consideration .of the facts and circumstances (in the manner set out in Challappan and Tulsiram Patel) may impose the penalty. It was also clarified that if the penalty imposed was whimsical or disproportionately excessive, the same was open to correction in judicial review. The subsequent decision of the Supreme Court in Sunil Kumar Sarkar dealt with the amended Rule 19 of the Central CCA Rules which provided for a hearing; therefore, the principle laid down in Sunil Kumar Sarkar can not be of any assistance in interpreting Rule 19 of the State CCA Rules in the absence of an amendment in the State CCA Rules corresponding to the amendment made in the Central CCA Rules. As the State CCA Rules stand today, the law applicable is as laid down in Tulsiram Patel and not as laid down in Sunil Kumar Sarkar.
We accordingly overrule the decisions of the Division Bench in Tikaram case (supra) and Sheetal Kumar Bandi case (supra), in so far as they hold that the delinquent employee should be given a notice giving an opportunity to put forth his views as to the penalty proposed to be imposed:
The second premise in the Sheetal Kumar Bandi that in exercise of the power of judicial review, the Court can examine whether there was consideration of the relevant facts and circumstances by the disciplinary authority in imposing the penalty and correct the penalty if it is excessive, is in consonance with the decisions of the Supreme Court in Challappan, Shankar Dass, Tulsiram Patel and Sunil Kumar Sarkar. If the conviction is for any minor offence which does not involve any moral turpitude, a punishment of removal or dismissal from service will certainly be excessive. But where the conviction is on the ground of corruption, as in this case, there can be no two views that imposition of punishment byway of dismissal is just and proper and not excessive.”
8. Furthermore, the Hon’ble Supreme Court in the matter of Satyavir Singh and Ors Vs. UOI (1985) 4 SCC 252 considered the scope of judicial review in respect of clause of the second proviso to Article 311 (2) of the Constitution of India. The following was held at 105 of the said judgment which is reproduced hereunder:-
“(105) Where a civil servant has been dismissed or removed from service or reduced in rank by applying clause (a) of the second proviso to Article 311 (2) or an analogous service rule and he invokes the Court's power of judicial review, if the Court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or was not warranted by the facts and circumstances of the case or the requirements of the particular government service to which the concerned civil servant belonged, the Court will strike down the impugned order. In such a case, it is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case. If, however, the Court finds that he was not in fact the civil servant who was convicted, it will strike down the impugned order of penalty and order his reinstatement.”
9. In light of the aforesaid legal position and considering the facts and circumstances of the case, this Court is of the considered opinion that the charges levelled against the petitioner on the basis of which the petitioner was also convicted appears to be serious in nature and are detrimental to the interest of the respondent/State. As per Rule 19 (1) of the CCA Rules, 1966, for an employee, who has been convicted on the charge of corruption, no notice is necessary before dismissing him from service. Hence, the disciplinary authority, after reaching to the conclusion that the petitioner’s conduct was such which requires his dismissal, has passed the order of dismissal which is not excessive.
10. Accordingly, the impugned order does not suffer from any illegality or infirmity warranting interference of this Court under Article 226 of the Constitution of India.
11. Consequently, the petition fails and is hereby dismissed.
12. No order as to cost(s).
