Dismissed

Dilip Kumar Mahatha v. Chief Secretory

Jharkhand HC14 Feb 2023WPC/6553/2012

Case brief

AI extract

What is this about?

This Court dismissed a writ petition challenging the dismissal of the petitioner from service under Rule 49(vii) of CCA Rules. The Court held that dismissal under Article 311(2)(a) due to conviction does not require departmental proceedings or natural justice safeguards. Reliance was placed on Supreme Court precedents. Petitioner's claim of discriminatory punishment was rejected.

What did the court decide?

Petition for quashing the dismissal order and direction for reinstatement was dismissed.

Dilip Kumar Mahatha Vs Chief Secretory — Pension and Retirement Benefits | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S). No. 6553 of 2012

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Dilip Kumar Mahatha ………. Petitioner

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Versus

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The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand, Ranchi.

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The Principal Secretary, Personnel, Administrative Reforms & Rajbhasha, Govt. of Jharkhand, Ranchi.

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The Deputy Secretary, Personnel, Administrative Reforms & Rajbhasha, Govt. of Jharkhand, Ranchi.

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The Commissioner, Santhal Pargana Division, Dumka.

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The Deputy Commissioner, Dumka.

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The Deputy Collector (Establishment), Dumka.

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Jharkhand Public Service Commission through its Chairman, Ranchi.

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Bihar Public Service Commission through its Chairman, Patna. ………. Respondents .

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

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----------For the Petitioner : Mr. Aashish Kumar, Advocate For the State : Mr. Rahul Saboo, GP-II For the JPSC : Mr. Sanjoy Piprawall, Advocate Mr. Rakesh Ranjan, Advocate Mr. Prince Kumar, Advocate ----------

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10/ 14.02.2023 Heard the parties.

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2. Petitioner has approached this Court with a prayer for quashing the order dated 25.09.2012, issued under the signature of the Deputy Collector (Establishment), Dumka, by which the petitioner has been dismissed from services under the provisions of Rule-49(vii) of the Civil Services (Classification, Control & Appeal) Rules (for short “CCA Rules”).

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3. As per the factual matrix, on being successful in the 27^th Combined Civil Services Examination conducted by the Bihar Public Service Commission, the petitioner joined the post of Deputy Collector on 09.05.1980. It is the case of the petitioner that while working as Deputy Collector in the district of Deoghar, he was implicated in a criminal case and thereafter, in view of the order passed in Sessions Case No. 148 of 1995, he was sentenced for rigorous imprisonment for life. The order of conviction was challenged in appeal before this Court in Cr. App. (D.B.)

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No. 527 of 2005 and vide order dated 05.07.2005, has been enlarged on bail. It is the specific case of the petitioner that without following the procedure of law and without adhering to the provisions of Rule 55 of the CCA Rules, the services of the petitioner has been dismissed from service under Rule-49(vii) of CCA Rules. It is also case of the petitioner that one similarly situated person namely, Bibha Kumari, who was also convicted, in her case lessor punishment has been inflicted and she has been allowed to work and she is working as on date.

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When the case of the petitioner was not considered despite several representation and no order was passed, he has been constrained to knock the door of this Court.

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4. Mr. Aashish Kumar, learned counsel appearing for the petitioner strenuously urges that impugned order is not tenable in the eyes of law as the same is against the provisions of Rule-55 of the CCA Rules. Learned counsel further argues that a departmental proceeding ought to have been initiated against the petitioner and thereafter, after following the principle of natural justice, any order could have been passed. Learned counsel also argues that the impugned order is also bad in law on the ground that discriminatory approach has been adopted by the respondents inasmuch as one similarly situated person, namely, Bibha Kumari, who was also convicted in the same case, has been reinstated into service. Learned counsel accordingly submits that for the aforesaid facts and reasons, the impugned order is fit to be quashed and set aside and a direction be given to the respondents to reinstate the petitioner in service, as has been done in case of Bibha Kumari.

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5. Per contra, counter-affidavit has been filed. Mr. Rahul Saboo, learned GP-II appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that the order of dismissal was rightly issued taking into consideration Article-311(2)(A) of the Constitution. Learned counsel further submits that law is well settled that in case of conviction of an employee, there is no need for initiation of a regular departmental proceeding or adhering to the cardinal principle of natural justice. Learned counsel submits that argument of the petitioner is not tenable in the eyes of law rather, the same is misconceived. Learned

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counsel further argues that Bibha Kumari was given lessor punishment and as such, she was reinstated but the case of the petitioner is not on the similar footing.

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6. Mr. Sanjoy Piprawall, learned counsel representing the respondentJPSC very fairly submits that having found no fault in the recommendation of the State Government, confirmation has been given to the order that in view of Article-311(2)(A) petitioner can be dismissed from service on the ground that he has been convicted in a criminal case.

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7. Be that as it may, having heard the learned counsel for the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that there is no infirmity or any illegality in the impugned order and rightly, the petitioner has been dismissed from service on the ground of conviction in a criminal case. The arguments advanced by learned counsel for the petitioner is not well founded.

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8. Before delving deep into the matter, provisions of Article-311(2)(a) has to be seen, which reads as under:

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“(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges

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Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply

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(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction in a criminal charge.”

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9. Since the petitioner has been convicted in the criminal case, rightly he has been dismissed from service. Rule-55 of CCA Rules and the arguments of learned counsel for the petitioner that without issuing showcause notice and adhering to the principle of natural justice, services of the petitioner cannot be taken away, is not attracted in this case

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10. The Hon’ble Apex Court in case of LIC v. Mukesh Poonamchand

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Shah, reported in (2020) 12 SCC 144 , has held as under:

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“ 15. 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 ground that the said government servantaccused has been released on bail pending the appeal.”

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This Court specifically disapproved of the view of the Tribunal that until the appeal against the conviction was disposed of, action under clause (a) of the second proviso to Article 311(2) was not permissible. The Court held : (S. Nagoor Meera case [Director of Collegiate Education (Admn.) v. S. Nagoor Meera, (1995) 3 SCC 377 : 1995 SCC (L&S) 686] , SCC p. 382, para 10)

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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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16. This view has been reiterated in another two-Judge Bench decision of this Court in K.C. Sareen v. CBI [K.C. Sareen v. CBI, (2001) 6 SCC 584 : 2001 SCC (Cri) 1186] . K.T. Thomas, J. speaking for the Court, held : (SCC p. 590, para 12)

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“12. … When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public

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servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself.”

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The Hon’ble Allahabad High Court in case of State of U.P. v. Prem Milan Tiwari, 2015 SCC OnLine All 8745 has held under:

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9. The decision in Shankar Dass, ((1985) 2 SCC 358 : AIR 1985 SC 772), (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 : (AIR 1995 SC 1364). 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:

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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.”

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11. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the instant writ petition merits dismissal and the same is hereby dismissed.

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kunal/-

Dilip Kumar Mahatha v. Chief Secretory

Case brief

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Dilip Kumar Mahatha v. Chief Secretory

Case brief

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