Dismissed

Sagiruddin Ansari v. Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director and Ors.

Jharkhand HC16 Feb 2023WPC/1347/2014

Case brief

AI extract

What is this about?

This writ petition challenged a dismissal order issued to a petitioner employee convicted of an offence involving moral turpitude under Section 498A IPC. The Single Judge held that dismissal without departmental proceedings is valid under the second proviso to Article 311(2) when based on criminal conviction, and the pendency of an appeal does not bar the action.

What did the court decide?

Writ petition dismissed as there is no illegality in the dismissal order based on criminal conviction involving moral turpitude.

Sagiruddin Ansari Vs Ms Bharat Coking Coal Limited… — Service and Employment | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 1347 of 2014

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Sagiruddin Ansari …. Petitioner

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Vs.

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M/s. Bharat Coking Coal Limited, Koiyala Bhawan, Koiyala Nagar, Seraidhela, Dhanbad through its Chairman-cum-Managing Director

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The Chairman-cum-Managing Director, M/s. Bharat Coking Coal Limited, Koiyala Bhawan, Koiyala Nagar, Seraidhela, Dhanbad

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The Director (Personnel), M/s. Bharat Coking Coal Limited, Koiyala Bhawan, Koiyala Nagar, Seraidhela, Dhanbad

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The General Manager (Personnel), M/s. Bharat Coking Coal Limited, Koiyala Bhawan, Koiyala Nagar, Seraidhela, Dhanbad

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The General Manager, Putki Balihari Area (P.B. Area), M/s. Bharat Coking Coal Limited, Putki, Kusunda, Dhanbad

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The Personnel Manager, Putki Balihari Area (P.B. Area), M/s. Bharat Coking Coal Limited, Putki, Kusunda, Dhanbad

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The Project Officer/Deputy Chief Mining Engineer, South Balihari Colliery, M/s. Bharat Coking Coal Limited, Kusunda, Bhagadih, Dhanbad

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The Personnel Manager, (Colliery), M/s. Bharat Coking Coal Limited, Kusunda, Bhagadih, Dhanbad

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CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK

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For the Petitioner : Mr. Mahesh Tewary, Advocate For the Respondents : Mr. A.K. Mehta, Advocate

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05/ 16.02.2023 The petitioner has approached this Court praying inter-alia for a direction upon the respondents particularly Respondent No.5 to send all the records appertaining to the issuance of dismissal order vide Reference No.1025 dated 7/11^th December, 2013, wherein the respondent No.5 has been pleased to dismiss the petitioner from service and for quashing the dismissal order issued vide Reference No.1025 dated 07/11^th December, 2013. Further, prayer has been made for a direction upon the respondents to reinstate the petitioner to his

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original post with all backwages and consequential benefits.

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As per the factual matrix, the case of the petitioner lies in a narrow compass. The petitioner was appointed and working as an Electrician in the South Balihari Colliery 5/7 Pit, under P.B. Area of the respondent company i.e., M/s. BCCL since the year, 1994 and there had not been a single adverse remark or any departmental proceeding as against him. However, marriage of the petitioner was solemnized according to Muslim Customs with one Nikhat Sahin on 30.01.1991 and subsequently, he gave Talaque to his wife in the year, 2006 soon thereafter that she re-married another person namely Md. Sagir in the year, 2006 itself. Thereafter, on the basis of forged Nikahnama, a criminal case was instituted against the present petitioner under Section 498 A of the Indian Penal Code being C.P. Case No.522 of 2011. The petitioner was convicted in this case vide judgment dated 05.06.2013 under Section 498A of the Indian Penal Code and sentenced to undergo R.I. for a period of three years along with a fine of Rs.10,000/- and in default, three months simple imprisonment was imposed upon. However, on the same day, provisional bail was granted to the petitioner for a period of one month by the learned Judicial Magistrate vide order dated 05.06.2013. Thereafter, on 26.06.2013, the provisional bail granted to the petitioner was confirmed by the learned Principal District & Sessions Judge, Dhanbad in Criminal Appeal No.229/2013. It is further the case of the petitioner that the conviction of the petitioner was informed to the respondent by the lady herself, who was complainant. As a result of which, show cause notice was issued mentioning therein as to why action shall not be taken against him vide notice dated 18/19.07.2013. Pursuant thereto, the petitioner replied to the same on 22.07.2013 & 03.10.2013. However, the respondents being dissatisfied with the reply, has been pleased to dismiss the petitioner from services vide impugned order dated 7/11.12.2013. Aggrieved by the same, the petitioner represented before the respondents, stating therein that he has been granted provisional bail and subsequently, the same was confirmed and as such, same shall be deemed to be suspension of sentence, but no heed was paid. Hence, the petitioner has been constrained to knock the door of this Court.

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Mr. Mahesh Tewary, learned counsel for the petitioner assails the impugned order of dismissal dated 7/11.12.2013 on the ground that same has

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been issued on the basis of para 26.1.19 of the Certified Standing Order of M/s. BCCL, wherein it was stated that ‘conviction by a court of law for any criminal offence involving moral turpitude amounts to misconduct’. The Clause 26.1.19 of Certified Standing Order of M/s. BCCL is in complete contravention to the Statutory Provisions of Section 389 of Cr. P.C. and as such, same may be declared ultra-vires and is liable to be quashed and set aside. He further submits that the petitioner was appointed in the year, 1994 and till his dismissal, there was neither any single adverse remarks as against him nor any departmental proceeding has been initiated against him. It is only because of a false criminal case and conviction thereof, he has been dismissed from services, which is not tenable in the eyes of law, ignoring the fact that he has been enlarged on bail under Section 389 Cr.P.C. As against the conviction he has already filed a criminal appeal, which is still pending and also in the said criminal appeal, he was granted bail and there is suspension of sentence under Section 389 Cr.P.C. and as such, impugned order is not tenable in the eyes of law. The impugned order of dismissal was passed without even adhering to the principles of natural justice and neither any departmental enquiry was initiated nor charge-sheet was ever served upon the petitioner.

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On the other hand, counter-affidavit has been filed by the respondents. Mr. A.K. Mehta, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that the impugned order has been issued on the basis of his conviction in a criminal case registered under Section 498A of the Indian Penal Code vide order dated 05.06.2013 passed by learned Judicial Magistrate, First Class, Dhanbad in C.P. Case No. 522/2011 (Corresponding to T.R. No.891/2013). He further submits that on account of conviction in criminal case, the petitioner was also served with a show cause notice and petitioner also submitted his reply, wherein he has admitted that he has been convicted under Section 498A of the Indian Penal Code and as such, rightly the petitioner has been dismissed from services as the petitioner has been convicted in an offence involving moral turpitude. Against the order of conviction though a criminal appeal has been filed by the petitioner, but there is no stay order regarding conviction by the learned Appellate court and as such, conviction of the petitioner continues. The

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conviction in a criminal case involving moral turpitude results into misconduct as enumerated in the Certified Standing Orders application to the workmen in establishment of M/s. BCCL.

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Be that as it may, having gone through the rival submissions of the parties, it appears that the petitioner has been dismissed from service on ground of conviction in criminal case and as such, there is no requirement for initiating a regular departmental proceeding. From perusal of Clause (a) of the second proviso to Article 311, it appears that clause (a) of the second proviso is to stipulate 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) and, as in the present case, the petitioner is an Electrician under the respondents and he was convicted under Section 498 A of the Indian Penal Code and thereafter, a show cause notice was issued to the petitioner, upon which he submitted his reply, admitting his conviction. Merely because an appeal has been filed by the petitioner against the order of conviction, cannot be a ground for quashment of order of dismissal. The order of dismissal is based on conviction in criminal case, involving moral turpitude, which results into misconduct as enumerated in the Certified Standing Orders and as such, rightly petitioner has been dismissed from service. The issue fell for consideration before the Hon’ble Apex Court in case of Life Insurance Corporation of India Vs. Mukesh Poonamchand Shah, reported in AIR Online 2020 SC 249 , wherein, His Lordship has held as under:-

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14 ………The position in this regard was elaborated upon in a judgment of a two-Judge Bench decision of this Court in Director of Collegiate Education (Admn.) v. S. Nagoor Meera [ Director of Collegiate Education (Admn.) v. S. Nagoor Meera , (1995) 3 SCC 377 : 1995 SCC (L&S) 686] , where B.P. Jeevan Reddy, J. speaking for the Court held : (SCC p. 381, para 8)

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“ 8 . … 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

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ground that the said government servant-accused has been released on bail pending the appeal.” XXX XXX XXX

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“ 10 . 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.”

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15. In State of Haryana v. Balwant Singh [ State of Haryana v. Balwant Singh , (2003) 3 SCC 362 : 2003 SCC (L&S) 279] , the respondent, who was an employee of a public transport corporation, caused a death as a result of his rash and negligent driving. The Corporation had to suffer an award of the Motor Accident Claims Tribunal. Following the disciplinary enquiry, the employee was subjected to a punishment of a reduction of pay to the minimum of the time scale of a driver for four years. On the conviction of the employee for offences under Sections 279, 337, 338 and 304-A of the Penal Code, his services were terminated. On this set of facts, a two-Judge Bench of this Court, speaking through Shivaraj V. Patil, J. rejected the argument based on the principle of double jeopardy and held : (SCC p. 366, para 7)

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“ 7 . … there was no question of the respondent suffering a double jeopardy. The aid of Article 20(2) of the Constitution of India was wrongly taken. Article 20(2) of the Constitution of India does not get attracted to the facts of the present case.”

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The Court held that when a major penalty was proposed to be imposed on the ground of the conduct of the employee which had led to conviction on a criminal charge, it was not necessary to take recourse of the provisions of Rules 7(1) and (2) of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 relating to the convening of an inquiry in which a reasonable opportunity of showing cause would have to be given.

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16. The decision in Lt. Governor, Delhi v. H.C. Narinder Singh [ Lt. Governor, Delhi v. H.C. Narinder Singh , (2004) 13 SCC 342 : 2006 SCC (L&S) 876] , relied upon by the respondent, is clearly distinguishable. Unlike the present case, where the respondent was convicted of various criminal offences and subsequently, a notice to show cause was issued, in H.C. Narinder Singh [ Lt. Governor, Delhi v. H.C. Narinder Singh , (2004) 13 SCC 342 : 2006 SCC (L&S) 876] there was no conviction based on a criminal charge. In the present case, following the conviction of the respondent by the Special Judge, CBI, the appellant was acting within jurisdiction in issuing a notice to show cause under Regulation 39(4) of the 1960

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Regulations. The learned Single Judge was correct in dismissing the special civil application filed by the respondent challenging the notice to show cause issued by the appellant. The judgment [ Mukesh Poonamchand Shah v. LIC , 2018 SCC OnLine Guj 4773] of the Division Bench restraining the appellant from taking a final decision on the show-cause notice pending the disposal of the criminal appeal has no valid basis in law.

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Since, the petitioner was dismissed on the ground of conviction for criminal offence involving moral turpitude, rightly he has been dismissed from service. The contention of the learned counsel for the petitioner that since appeal is pending against the order of conviction, it was incumbent upon the respondents to wait for the outcome of the appeal as he has been enlarged on bail, the said contention, is totally misconceived as the same is not supported by any authority of law and as there is no stay order of Appellate Court.

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In view of the above foregoing discussions, it appears that there is no illegality or infirmity in the impugned order and there is no merit in the instant case.

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Accordingly, writ petition stands dismissed.

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(Dr. S.N. Pathak, J.)

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Punit/-

Sagiruddin Ansari v. Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director and Ors.

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Sagiruddin Ansari v. Ms Bharat Coking Coal Limited through Its Chairman Cum Managing Director and Ors.

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