Per, Shree Chandrashekhar, A.C.J
1. The writ petitioner who suffered the punishment of dismissal from service is aggrieved by the writ Court’s order dated 27th March 2023 by which his challenge laid to the order of punishment dated 15th September 2004 has failed.
2. Mr. Rohit Sinha, the learned counsel for the appellant submits that the punishment order dated 15th September 2004 contravenes proviso to Clause 2 of Article 311 of the Constitution of India. The learned counsel further submits that the punishment order is seriously flawed in law in view of the law laid down by the Hon’ble Supreme Court in “Union of India v. Tulsiram Patel” AIR 1985 SC 1416 [LQ/SC/1985/223] and “Union of India v. V.K. Bhaskar” (1997) 11 SCC 383 [LQ/SC/1996/228] .
3. The writ Court has held as under:
8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant case. Admittedly, the petitioner has been dismissed on the ground of conviction.
9. Before delving deep into merits of the case, it would be apposite to see the provision of Clause (a) of the second proviso to Article 311 (2) of the Constitution of India, which stipulates that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. The action of the respondents cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311(2) of the Constitution of India.
10. Now, the issue as has been argued by the learned counsel for the petitioner that as to whether the Tulsiram Patel (supra) is attracted in the instant case or not
11. The Hon’ble Allahabad High Court while dealing with the aforesaid aspect, in case of State of U.P. Vs. Prem Milan Tiwari, reported in 2015(3) ALJ 528, has clearly observed as under:-
9. The decision in Shankar Dass, ((1985) 2 SCC 358 [LQ/SC/1985/85] : AIR 1985 SC 772 [LQ/SC/1985/85] ), (supra) was considered in a subsequent judgment of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, (1995) 3 SCC 377 [LQ/SC/1995/284] : (AIR 1995 SC 1364 [LQ/SC/1995/284] ). That was a case involving a conviction, under Section 420 of the Penal Code and Sections of the Prevention of Corruption Act, 1947. The respondent, following the order of conviction was served with a show cause notice for termination which was quashed by the Tribunal. The Tribunal had held that until an appeal against the conviction is disposed of,-, action under clause (a) of the second proviso to Article 311(2) was not permissible. This was held to be not reflective of the correct position in law. Following the decision in Shankar Dass, the Supreme Court held as follows:
“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 higher-court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or otiier proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.”
10. In a more recent judgment of the Supreme Court in Government of A.P. v. B. Jagjeevan Rao, (2014) 7 SCALE. 434, [LQ/SC/2014/579] the respondent had been charge-sheeted and con victed after trial of an offence under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act, 1988. Following the conviction, the respondent was dismissed from ser vice. The High Court had set aside the action and reversed the order of the Tribunal after noticing both the decisions in Tulsiram Patel ((1985) 3 SCC 398 [LQ/SC/1985/223] : AIR 1985 SC 1416 [LQ/SC/1985/223] ) and S. Nagoor Meera ((1995) 3 SCC 377 [LQ/SC/1995/284] : AIR 1995 SC 1364 [LQ/SC/1995/284] ) (supra). The Supreme Court observed as follows:
“Regard being had to the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service…”
12. Admittedly, the petitioner has been dismissed from the services on account of his conviction in criminal case. The plea of the learned counsel for the petitioner that no consideration has been shown is totally misconceived. Nothing has been brought on record to show that order of conviction has been stayed by the Superior Court. Since the order of dismissal is based on conviction in criminal case, this Court is satisfied with the order of dismissal. There is no illegality or infirmity in the impugned order.
13. Resultantly, the writ petition stands dismissed.”
4. Briefly stated, the appellant was found involved in demanding illegal gratification of Rs.1200/- for granting sanction to loan application submitted by the complainant’s brother. He was caught red-handed accepting the illegal gratification in a trap laid by the Central Bureau of Investigation (in short, “CBI”) and a criminal case vide R.C Case No. 8(A)/2002 (R) was registered. In the said case, the judgment of conviction dated 19th February 2004 under section 7 of the Prevention of Corruption Act was recorded by the learned Special Judge, CBI, Ranchi and the appellant was awarded punishment of RI for two years with a fine of Rs.5000/- with a default stipulation to undergo SI for five months. The appellant was further sentenced to RI for two and a half years for the offence under section 13(2) of the P.C Act with a fine of Rs.7,000/-; in default to undergo SI for seven months.
5. Criminal Appeal No.482 of 2004 filed by the appellant against the aforementioned judgment of conviction and order of sentence dated 19th February 2004 in R.C Case No.8(A)/2002 (R) was dismissed on 28th August 2006 and this was affirmed by the Hon’ble Supreme Court when Special Leave to Appeal (Crl.) No(s).704 of 2008 filed by the appellant was dismissed on 5th December 2008.
6. On the ground that the appellant was involved in a criminal case, the competent authority exercised powers under sub-rule 2 (a) of Rule 6 of the Employees’ Provident Fund Staff (Classification, Control and Appeal) Rules, 1971 (in short, “EPF Rules”) and the appellant was put under suspension by an order contained in Memorandum dated 22nd July 2004. The disciplinary authority who is the respondent no.2 passed an order on 15th September 2004 holding that it is necessary in the interest of justice that the appellant should not be retained in service under the Central Board. Therefore, the penalty of dismissal from service with immediate effect which shall ordinarily be a disqualification for further employment under the Central Board was imposed upon him. A reading of the penalty order further discloses that the competent authority has taken note of all relevant facts including dismissal of the criminal appeal filed by the appellant against the judgment of conviction and order of sentence in R.C Case No.8(A)/2002 (R).
7. At the outset, we may observe that there is no challenge laid by the appellant to the powers of the competent authority to pass the order of dismissal from service. There is a specific provision under Rule 15 of the EPF Rules under which the regular procedure for a domestic inquiry may be dispensed with by the competent authority. The opening words of Rule 15 which starts with a non-obstante clause leave no manner of doubt that wherever it is found that the conduct of an employee which led to his conviction on a criminal charge shall be a ground for proceeding under Rule 15. The penalty order dated 15th September 2004 clearly records that the competent authority has exercised powers under Rule 15(i) of the EPF Rules.
8. Rule 15 of the EPF Rules reads as under:
“15. Special procedure in certain cases: Notwithstanding anything contained in rule 10 to rule 14:-
(i) where any penalty is imposed on an employee 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 Government or the Central Provident Fund Commissioner 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.”
9. Reliance on “V.K. Bhaskar” is misconceived inasmuch as in the said case the Hon’ble Supreme Court held that the pendency of an appeal against the conviction shall not be a bar for passing of an order of dismissal from service. In “V.K. Bhaskar”, the provisions in Rule 19 (i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 which are couched in identical words as Rule 15 fell for consideration and the Hon’ble Supreme Court held as under:
“4. Rule 19(i) of the Rules is based on clause (a) of the proviso to sub-article (2) of Article 311 of the Constitution. Construing the said proviso to Article 311(2), this Court, in Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera has held: (SCC pp. 380-82, paras 7-10)
“This clause, it is relevant to notice, speaks of ‘conduct which has led his conviction on a criminal charge’. It does not speak of sentence or punishment awarded. Merely because the sentence is suspended and/or the accused is released on bail, the conviction does not cease to be operative. Section 389 of the Code of Criminal Procedure, 1973 empowers the appellate court to order that pending the appeal ‘the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond’. Section 389(1), it may be noted, speaks of suspending ‘the execution of the sentence or order’, it does not expressly speak of suspension of conviction.
We are, therefore, of the opinion that taking proceedings for and passing orders of dismissal, removal of 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).
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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 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.”
5. The Tribunal was, therefore, not right in holding that the respondent could not be dismissed by invoking the provision of Rule 19(i) of the Rules because the appeal filed by him against the conviction and sentence is pending in the High Court.”
10. This is also not in the realm of any doubt that demanding illegal gratification is a conduct that amounts to moral turpitude and in such cases dismissal from service is the only appropriate punishment [refer, “U.P. SRTC v. Suresh Chand Sharma” (2010) 6 SCC 555] [LQ/SC/2010/588] .
11. Having held so, we find no merit in this Letters Patent Appeal and, accordingly, L.P.A No.617 of 2023 is dismissed.
