Devendra Pandey vs State of M.P. & others

The petitioner has filed the present petition challenging the order dated 15/06/2017 passed by respondent No.2 thereby terminating the services

of the petitioner.

Brief facts of the case are that the petitioner was working on the post of Assistant Sub-Inspector at P.S. Kotwali District Sidhi. In the year 2003

when the petitioner was posted at Tikamgarh, one Prakash Vishwakarma, Shilpi and Rajju had found treasure in the form of British Period Coins

and Mughal period coins and golden plates. However, the said Prakash, Shilpi and Rajju did not inform the Collector about the treasure and

thereby committed an offence under Section 4 r/w 20 of the Indian Treasure Trove Act, 1878 and Section 206 of IPC. It was alleged that the

petitioner and one Rameshwar, who were working as public servant not performed their duty by not informing the authorities about the treasure

and, accordingly, the petitioner was also made accused in the matter. Thereafter, learned Judicial Magistrate First Class has passed the judgment

dated 10/02/2017 thereby convicting the petitioner under Sections 206, 212 & 119 of the IPC and sentenced him with 2 years S.I., 1 year S.I.

and 6 months S.I. respectively. Against the order of conviction, the petitioner has preferred an appeal before the Sessions Judge Tikamgarh. The

Sessions Judge vide order dated 27/02/2017 has suspended the implementation of the conviction order. In furtherance of order of conviction

respondent No.2 has issued a notice to the petitioner whereby the petitioner was asked to submit his reply as a department has to take disciplinary

action against him. The petitioner submitted reply to the said show cause notice, however, respondent No.2 without taking into consideration of the

reply submitted by the petitioner has passed the impugned order dated 15/06/2017, thereby dismissing the petitioner from the services. Being

aggrieved by that order, the petitioner has filed the present writ petition.

Learned counsel for the petitioner argues that the impugned order dated 15/06/2017 is illegal, arbitrary and violative of principle of natural

justice. He submits that no summary enquiry has been conducted by the respondents against the petitioner as contemplated under Rule 19 of the

M.P.Civil Services (Classification, Control and Appeal) Rules, 1966 (herein after referred as ''the Rules'') and only on the basis of conviction

order, his services have been terminated. He submits that the petitioner has not held guilty for moral turpitude. At the most, it can be said that the

petitioner was failed to perform his duties and that would not fall within moral turpitude. He further submits that the impugned order dated

15/06/2017 is also without jurisdiction because the petitioner is working and posted as Assistant Sub-Inspector at P. S. Kotwali District Sidhi,

which comes under the Rewa Renge i.e. respondent No.3 DIG, Rewa Range and impugned order has been passed by respondent No.2 i.e. DIG,

Chhatarpur who has no jurisdiction to pass the impugned order. He submits that the order of dismissal is excessive and disproportionate. He

submits that the order of conviction has already been stayed by the appellate Court and, therefore, the order impugned be set aside. He further

submits that during pendency of the petition, the Sessions Judge has passed the order dated 18/09/2017 thereby affirming the judgment passed by

the JMFC. Against the order of Sessions Judge, the petitioner has preferred a Criminal Revision No.2767/2017 before this Court. The said

revision was disposed of vide order dated 14/12/2017 and this Court has directed that the petitioners be released on executing a bond of

Rs.50,000/- each before the trial Court within 30 days from today to appear and receive sentence of rigorous imprisonment for six months when

called upon to do so and in the meantime to keep the peace and be of good behaviour. Benefit of Section 12 of the Probation of Offenders Act,

1958 is also extended to the petitioner. Thus, the order of conviction imposed on the petitioner has been modified to the above terms. The

petitioner further relied upon the judgments passed by the Apex Court in the case of Shankar Dass vs. Union Of India & another, 1985 (2) SCC

358, Union of India & others vs. Sunil Kumar Sarkar, 2001 (3) SCC 414 and State of M.P. & others vs. Hazarilal, 2008(3) SCC 273.

The respondents have filed their reply and in the said reply, respondents have stated that the services of the petitioner has been dismissed from

the post of Assistant Sub-Inspector on the ground that the petitioner has been convicted under Sections 206, 212 and 119 of the IPC by JMFC,

Tkamgarh vide order dated 10/02/2017. As the petitioner has been convicted for committing the criminal offence, therefore, under the garb of

Rule 10(9) and 19(1) of the Rules, the services of the petitioner has been dismissed.

Heard learned counsel for the parties and perused the record. From perusal of the record, it reveals that the petitioner was working on the post

of Assistant Sub- Inspector. When he was posted at Tikamgarh, a criminal case was registered against him under Sections 206, 212 & 119 of the

IPC. The JMFC, Tikamgarh has passed the order dated 10/02/2017 thereby convicting the petitioner and sentenced with 2 years, 1 year and 6

months S.I. respectively. Against the said order passed by the JMFC, the petitioner has preferred an appeal before the Sessions Court,

Tikamgarh. The learned Sessions Judge initially suspended the conviction imposed on the petitioner, however, thereafter, vide order dated

18/09/2017 has maintained the order of conviction passed by the JMFC. Against the order passed by the Sessions Judge, the petitioner has

preferred Criminal Revision No.2767/2017. The said revision was disposed of vide order dated 14/12/2017 thereby modifying the conviction

imposed on the petitioner by directing the respondents to release the petitioner under the Probation of Offenders Act.

In the present case, the allegations against the petitioner is that he has not properly performed his duties, however, no offence involving any

moral turpitude has been alleged against the petitioner. The Hon''ble Apex Court in the case of Shankar Dass (supra) in para 7 has held as under :-

It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without

applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the

second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service ""on the ground of

conduct which has led to his conviction on a criminal charge"". But, that power, like every other power, has to be exercised fairly, justly and

reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter, in a noparking area

should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to

Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct

which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of

this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.

As per the said judgment, although the State Government has a power to dismiss the person from the service on the ground of conduct which has

led to his conviction on a criminal charge. But that power has to be exercised fairly, justly and reasonably.

Similarly, the Hon''ble Apex Court in the case of Hazarilal (supra) in para 7 & 8 has held as under :-

By reason of the said provision, thus, ""the disciplinary authority has been empowered to consider the circumstances of the case where any

penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge"", but the same would not

mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of

dismissal must be passed. Such a construction, in our opinion, is not warranted.

An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances

of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The

respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not

bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.

As per the said judgment, the authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending

facts and circumstances of the case before imposing an order of punishment. It has further been held that irrespective of the nature of the case in

which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. In the present case also, the

petitioner was not convicted for any act involving moral turpitude.

Similarly, in the case of Union of India (supra) the Apex Court in para 8 has held as under :-

................ Of course, it will have to bear in mind the gravity of the conviction suffered by the government servant in the criminal proceedings

before passing any order under Rule 19 to maintain the proportionality of punishment.

In the present case, from perusal of the record it reveals that the petitioner has been convicted for committing an offence under Sections 206, 212

& 119 of the IPC and sentenced with 2 years, 1 years and 6 months S.I. respectively. Against the said order, the petitioner has preferred an

appeal before the Sessions Court, thereafter, a revision before this Court. In the criminal revision, this Court has directed to release the petitioner

on executing a bond of Rs.50,000/- each before the trial Court. Thus, the benefit of Section 12 of the Probation of Offenders Act has been

extended towards the petitioners.

Thus, in light of these subsequent order passed by this Court in a criminal revision as well as the judgments passed by the Apex Court, I found

that the punishment which is imposed on the petitioner is disproportionate. The Apex Court in the judgments cited above has held that in each case

of conviction, dismissal is not warranted and it depends on the facts and circumstances of each case.

Thus, in light of the aforesaid discussion, I deem it proper to allow the writ petition filed by the petitioner. The impugned order dated

15/06/2017 is hereby set aside and the respondents are directed to reinstate the petitioner along with all the consequential benefits.