Rajiv Narain Raina, J.@mdashThe petitioner was a regular Chowkidar appointed on 3.11.1995 to work in the ICDS project Dadri-I. He was
involved in a criminal case in FIR No. 128 of 28.3.2006 under Sections 148, 149, 451, 452, 323, 506, 427 IPC registered at Police Station
Sadar Bhiwani. The trial Court convicted the petitioner by judgment dated 15.6.2011 and sentenced him to simple imprisonment of two years with
fine. The appeal preferred before the learned Additional Sessions Judge, Bhiwani, was partly allowed and the petitioner was released on probation
on good conduct for a period of two years instead of sentencing him at once to suffer a jail sentence. The conviction has been recorded under
Sections 148, 452 and 506 IPC. Mr. Malik, learned senior counsel for the petitioner relies on instructions issued by the Haryana Government
dated 26.3.1975 which deal with rehabilitation of ex-convicts released from jail and on the question of making them eligible for appointment to
serve under Government. Together with these instructions a list of offences involving moral turpitude has been attached and various offences under
IPC have been enumerated therein. Though the list is not exhaustive of the offences which involve moral turpitude but the sections under which the
conviction of the petitioner do not find place in the list.
2. Ms. Kirti Singh, learned Deputy Advocate General, Haryana, appearing for the State of Haryana points out from the instructions itself that the
circular lays down tests which should ordinarily be applied in judging whether certain offences involve moral turpitude or not. These are:
1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general.
2) Whether the motive which led to the act was a base one.
3) Whether on account of the act having been committed the perpetrator could be considered to be of depraved character or a person who was to
be looked down upon by the society.
3. Learned State counsel further submits that the list is not exhaustive and there can be offences which are not included in it but which in certain
situations and circumstances may involve moral turpitude.
4. The question whether the offences under which the conviction was recorded involve moral turpitude or not may not be necessary to go into in
deciding this case after this Court has examined with the assistance of learned counsel the order of dismissal dated 20.3.2013 passed by the
Women and Child Development Department, Haryana. In the order the following has been recorded:
Opinion of LR was also obtained in this case who opined that under Article 311 of the Constitution of India it is not mandatory that punishment of
dismissal removal or reduction in rank should necessarily be imposed. The disciplinary authority will first have to decide what punishment is
warranted keeping in view the facts and circumstances of the case. If disciplinary authority comes to the conclusion that the offence committed was
grave and punishment of dismissal/removal or reduction in rank is called for, it must dispense with the enquiry and decide for itself which of the 3
penalties should be imposed. It is clear from Article 311(2) of the Constitution of India that if an employee is convicted on a criminal charge, the
mandate given in Article 311(2) will not apply as observed in State of Punjab v. Harbans Lal, 2005(2) S.C.T. 27 : 2005(2) RSJ 398. But while
doing so, the disciplinary authority has to decide whether the conduct which led to the conviction to Govt. servant on a criminal charge was such as
to warrant the imposition of penalty.
I have observed that the conduct of Sh. Jagbir Singh, Chowkidar, ICDS Project Dadri-I has led to his conviction on a criminal charge although he
has been released on probation of good conduct for a period of 2 years instead of sentencing him at once to jail on his entering into a bond in the
sum of Rs. 15000/- with one surety in like amount to appear and receive sentence when called upon during the period of 2 years and in the
meantime to keep the peace and be of good behaviour. Yet he was not fully acquitted and his conviction still stands. Therefore, it is not reasonably
practicable to hold any such enquiry as his case has already been tried in Court of Hon''ble Additional Sessions Judge-II Bhiwani where ample
opportunity was available to him to defend himself.
Thus on perusal of the court orders, the matter has been examined at length and it emerges that Sh. Jagbir Singh cannot be allowed to continue on
the post of Chowkidar as he has been convicted under Sections 148, 452 and 506 of IPC. Therefore, in view of the judgment of Hon''ble
Additional Session Judge-III Bhiwani mentioned above and delivered on 22.9.2011 Sh. Jagbir Singh Chowkidar, ICDS Project Dadri-I is
awarded punishment of removal from service which shall not be a disqualification for future employment under the Government with immediate
effect.
5. It is not disputed that no enquiry was conducted in this case before passing the order of dismissal since resort was had to Article 311(2)(a) of
the Constitution of India to justify action taken. Article 311(2)(a) is an exception to the general rule that a dismissal order should normally be
passed after holding enquiry and on proof of charges justifying the extreme punishment of dismissal or removal from service. However, in a case of
conviction recorded by a Court of competent criminal jurisdiction at a full fledged trial, the general rule gives way to empower the disciplinary
authority to impose punishment of dismissal or on the conduct which led to the conviction as the case may be.
6. A reading of the order of dismissal reproduced above shows that no attention has been paid by the disciplinary authority to the provision which
empowers it to take punitive action, that is the conduct which led to the conviction. There is no indication in the order as to what weighed in the
mind of the disciplinary authority with respect to the conduct which led to conviction and therefore, to that extent the order suffers from grave
error. One can also not lose sight of the fact that the offences which were proved against the petitioner did not result from an action or incident
which had nothing to do with the employment under the State. Nor were there any charges of corruption etc. of a base kind.
7. This Court sits in secondary review while exercising its power under Article 226 of the Constitution of India to test Government action in testing
the degree of arbitrariness or unreasonableness in administrative action in choice of punishment and would interfere only when the arbitrariness is
hit by Wednesbury principles as enunciated in Om Kumar and others v. Union of India, 2001(1) S.C.T. 214 : 2000 Suppl. 4 SCR 693. Though
the choice of punishment from the range of punishments available to the disciplinary authority under the rules is the business of the primary authority
but this Court can step in when it appears to it that action is either too harsh or exaggerated or unreasonable by applying the theory of
proportionality. Since no reason has been assigned by the disciplinary authority in the punishment order as to what weighed in its mind for this
Court to test its correctness and to substitute punishment itself to one of lesser potency, but, however, since the order is non-speaking and silent as
to what weighed with the disciplinary authority to reach only one conclusion, that is, of dismissal, this Court in secondary review would only
consider setting aside of the order and remitting the matter back to the disciplinary authority to pass a fresh order after following the principles of
law laid down in Union of India and Another Vs. Tulsiram Patel and Others, which requires the disciplinary authority to apply mind to the issue
conduct behind conviction and all other attending circumstances, including of the judgment of conviction before choosing one of the harshest
punishments available to it, and to fit the punishment to the crime and the crime to the punishment. For the aforesaid reasons, this writ petition is
partly allowed. The impugned order of dismissal is set aside by applying principle of proportionality. Since there is an interim stay order in favour of
the petitioner and he continues to serve, it is made absolute. The grant of stay by this Court is itself indicative of the conclusion reached at the final
hearing today. Accordingly, the respondent would pass a fresh order applying the principles spelt out above. If necessary or required the petitioner
would be given effective oral hearing before passing final order.
