S. Vasundara vs Canara Bank and Others

K.A. Swami, C.J.—In this petition under Art. 226 of the Constitution, the petitioner has sought for quashing the show cause notices dated

September 12, 1994, bearing No. MDUC SSO 10697/F7 VM and No. MDUC SSO 10694/F7 VM issued by the Deputy General Manager of

Canara Bank, to the petitioner.

The show cause notices read as follows :

REF : MDUC SSO 10697/F7 VM

Sub : Criminal Case No. 3/86 before the 1 Additional Sessions Court,

Madurai.

We note that you have been convicted by the Court for the offences under Indian Penal Code and Prevention of Corruption Act. The details of

sentence passed by the Court are furnished as under :

Section 120-B of IPC

One year Rigorous imprisonment (RI)

Section 420 IPC (69 counts)

Three years rigorous imprisonment and Rs. 1000/- fine for each count (69 x 1000 = 69,000/-) in default to undergo one year RI.

Section 477A of IPC (11 counts)

Three years rigorous imprisonment and Rs. 1,000/- fine for each count (11 x 1000 = 11,000/-) in default to undergo one year RI.

Section 5(2) r/w. Section 5(1)(d) of Prevention of corruption Act (35 counts)

Three years rigorous imprisonment and Rs. 1000/- fine for each count 35 x 1000 = 35,000/-) in default to undergo one year RI.

In view of your conviction in the above criminal case, I propose to impose the punishment of ''dismissal'' in terms of Regulation 11 of the Canara

Bank Officer Employees'' (Discipline and Appeal) Regulations.

You may submit your representation, if any, on the punishment proposed to be imposed on you as stated above, within 15 days of receipt of this

letter failing which the matter will be proceeded with, treating that you have no representation to submit in the matter.

REF : MDUC SSO 10698/F7 VM Date; September 12, 1994.

Sub : Criminal Case No. 4/86 to 6/86 before the I Additional Sessions Court,

Madurai.

We note that you have been convicted by the Court for the offences under Indian Penal Code and Prevention of Corruption Act. The details of

Sentence passed by the Court are furnished as under :

Section 420 IPC (3 counts)

Three years rigorous imprisonment and Rs. 1,000/- fine for each count (3 x 1000 = 3,000/-) in default to undergo one year RI.

Section 477A of IPC (3 counts)

Three years rigorous imprisonment and Rs. 1,000/- fine for each count (3 x 1000 = 3,000/-) in default to undergo one year RI.

Section 5(2) r/w Section 5(1)(d) of Prevention of Corruption Act (3 counts)

Three years rigorous imprisonment and Rs. 1000/- fine for each count (3 x 1000 = 3,000/-) in default to undergo one year RI.

In view of your conviction in the above criminal case, I propose to impose the punishment of ''Dismissal'' in terms of Regulation of the Canara

Bank Officer Employees'' (Discipline and Appeal) Regulations.

You may submit, your representations, if any, on the punishment proposed to be imposed on you as stated above, within 15 days of receipt of this

letter failing which the matter will be proceeded with, treating that you have no representation to submit in the matter.

It is contended that the Deputy General Manager is not the disciplinary authority and, therefore, the show cause notices issued by him are bad,

as the same are issued by the incompetent authority.

The petitioner is governed by the Canara Bank Officer Employees'' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as ''the

regulations''). As per the Schedule to the said Regulation, relating to Discipline and Appeal Regulations, General Manager is the Disciplinary

Authority in respect of Scale I Officers. It is not disputed before us that the petitioner is a Scale I Officer. That being so, the show cause notices

issued by the Deputy General Manager cannot be held to be bad in law because he is the disciplinary authority for Scale I Officers.

The petitioner has been convicted by the first Additional Sessions Judge, Madurai in Criminal Case Nos. 3 and 4 to 6 of 1986 for various

offences and sentenced to undergo rigorous imprisonment and to pay fine. Aggrieved by the order of convictions and sentences, petitioner has

preferred Criminal Appeal Nos. 504 and 505 of 1994 before this Court and the same are pending. Pending disposal of the Criminal Appeals,

petitioner has also obtained suspension of sentences . It is not in dispute that the convictions have not been stayed or suspended. Thus, the

convictions recorded by the First Additional Sessions Judge, Madurai, in the aforestated Criminal Cases, are operative. The question for

consideration is, whether in such a case, the disciplinary authority is justified in proceeding with the disciplinary proceeding, pursuant to the

impugned show cause notices. In other words, in a case where only the sentences are suspended, and convictions are not stayed or suspended,

whether pending disposal of Criminal Appeals, the disciplinary authority can continue with the disciplinary proceedings, on the basis of the conduct

of the petitioner which has led to his conviction on criminal charges. It is not necessary to us to approach this question de novo, as the matter is no

more res integra.

In Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meeran 1995 SCC 686, it has been specifically held thus :

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

orders is suspended by the Appellate Court 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 fill the appeal, revision and other ramie dies 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 punishment mentioned in Article in 311(2). As held by this Court in Shankar Dass Vs. Union of India (UOI) and

Another, :

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 3@ 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 beard 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 Appellate or other High 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 manner that he suffers no prejudice"".

The principle enunciated in the aforesaid decision squarely applies to the case on hand. That being so, we see no reason either to interfere with the

show cause notices issued, or to postpone the consideration of this writ petition until the criminal appeals are decided. As the show cause notices

are issued by the disciplinary 3 authority and as the disciplinary authority, in the light of the aforesaid decision of the Supreme Court, can proceed

with the proceedings, in view of the fact that only the sentences are suspended, and the conduct which has led to the conviction of the petitioner on

criminal charges cannot also be suspended, we see no reason to grant the relief sought for. This writ petition is accordingly dismissed W.M.P. No.

25805 of 1994 is also dismissed.