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Judgment
K. Chandru, J.—The Petitioner was working as a Male Nursing Assistant in the Government Stanley Hospital. He filed O.A. No. 7094 of
2000 before the Tamil Nadu Administrative Tribunal seeking to set aside the order dated 01.12.1999 passed by the second Respondent - Dean,
Government Stanley Hospital.
By the impugned order, the Petitioner was removed from service on account of his conviction by the Sessions Court, Chennai in S.C. No. 125
of 1994 dated 29.09.1994. The Petitioner was shown as Accused No. 2 in the Sessions Trial and the Sessions Court convicted the Petitioner in
terms of Section 307 read with 34 IPC and he was also sentenced to five years rigorous imprisonment.
The Petitioner was given a show cause notice asking why he should not be removed from service. The contention of the Petitioner was that he
had preferred appeal in Criminal Appeal No. 568 of 1994 and in view of the pendency of the appeal, the punishment need not be imposed on him.
However, by order dated 01.12.1999, the Petitioner was removed from service. Challenging the same, the Petitioner filed appeal before the first
Respondent. The appeal was also rejected by the first Respondent by order dated 27.11.2000 according to the counter affidavit filed by the
Respondents.
The contention raised by the Petitioner before the Tribunal was that in view of the pendency of the criminal appeal, he cannot be removed from
service and the conviction by the trial court had nothing to do with the employment and the hospital and no enquiry was conducted in terms of the
penalty imposed on him.
On notice from the Tribunal, the second Respondent has filed a counter affidavit dated 24.07.2001. In view of the abolition of the Tribunal, the
matter stood transferred to this Court and renumbered as W.P. No. 45174 of 2006.
The contentions raised by the Petitioner are no longer res integra. In identical circumstances, the Supreme Court in Deputy Director of
Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, , in paragraphs 8 to 10 held as follows:
We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason
that what is relevant for Clause (a) of the second proviso to Article 311(2) is the ""conduct which has led to his conviction on a criminal charge"" and
there can be no question of suspending the conduct. We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal,
removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or
order is suspended by the appellate court or on the ground that the said government servant-accused has been released on bail pending the appeal.
The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under Clause (a) of the second proviso
to Article 311(2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take
action under Clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the
appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can
always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he
continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it
would mean continuing in service a person who has been convicted of a serious offence by a criminal court. It should be remembered that the
action under Clause (a) of the second proviso to Article 311(2) will be taken only where the conduct which has led to his conviction is such that it
deserves any of the three major punishments mentioned in Article 311(2). As held by this Court in Shankar Dass V. Union of India (SCC p.362
para 7) ""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
no-parking 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.
What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the
Respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the Appellant or other higher court, it
may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be
reviewed in such a manner that he suffers no prejudice
In view of the above judgment, there was no impediment for the Respondents to impose penalty on the Petitioner. Since removal of service is
beyond the power under Article 311(2)(a) of the Constitution, the question of grant of any notice will not arise. Though in the present case, the
Respondents have given notice before imposition of penalty, the Supreme Court in such circumstances, dealing with an order passed under Article
311(2)(a) in the case of Union of India and Another Vs. Tulsiram Patel and Others, has held that the power under Article 311(2)(a) is not
circumscribed by any rule framed by the Government under Article 309. In such circumstances, when a penalty is imposed by the competent
authority, even without notice, the remedy available to the Petitioner is to file appeal and convince the appellate authority regarding appropriate
proportion of the punishment. In the present case, the appellate authority is not convinced. The contention raised is that it does not stand the
scrutiny of law.
8.However, when the matter came up, Mr. S. Shanmugasundaram, learned Counsel for the Petitioner submits that subsequent to the filing of the
O.A., a Division Bench of this Court had delivered its judgment on 09.07.2002 and in paragraph 10 of the said judgment, the conviction of the
Petitioner u/s 302 read with 34 IPC was altered to one u/s 326 IPC and also the sentence undergone by him was directed to be set off as penalty
for the altered offence. A copy of the said judgment is also produced before this Court.
The fact that the criminal appeal is disposed of is not disputed by the learned Government Advocate appearing for the Respondents. However,
in the counter affidavit filed by the second Respondent - Dean, Stanley Hospital, it was contended that they are well within their rights to impose
penalty and the Petitioner was not entitled for any remedy.
This Court is not inclined to accept the same. The Supreme Court in Union of India v. Paramananda reported in AIR 1989 SC page 1185 has
held that in case of penalty under Article 311(2)(a) since, there is no hearing provided, the Tribunal or the High Court can invoke extraordinary
jurisdiction under Article 226 of the Constitution of India and alter the penalty in the given case.
But, in the present case, the Petitioner had not sent any further appeal to the State Government, which ultimately has power to decide the
penalty. The fact that the Petitioner''s conviction u/s 302 read with 34 IPC also altered to 326 IPC and also the sentence was reduced to the
period of imprisonment, which was undergone by him, which is not within the knowledge of the Respondents including the State Government,
which is ultimately, the appointing authority.
Under these circumstances, though the Petitioner''s relief cannot be granted by this Court and the stand of the Respondents in consonance with
the judgment rendered by the Supreme Court referred to above, yet this does not preclude the Petitioner from filing further appeal to the State
Government by bringing to their knowledge of the subsequent developments and seek for modification of the penalty of the Division Bench, which
had become final.
While the writ petition is dismissed on the ground stated above, the Petitioner is at liberty to file appeal to the State Government viz., the
Secretary to the Government (Health and Family Wefare Department) with all the supporting documents and if any said appeal is filed within four
weeks from today, the State Government shall consider the same in accordance with law and pass appropriate orders and communicate the same
to the Petitioner within eight weeks from the date on which, the appeal is received by the State Government.
The writ petition is dismissed with the above direction. No costs. A copy of this order is directed to be despatched to the Secretary, Health
and Family Welfare Department, Government of Tamil Nadu, Fort. St.,George, Chennai-600 009.