Allowed

Birbal v. Union of India

Punjab & Haryana HC14 Jan 2014CWP/16143/1998

Case brief

AI extract

What is this about?

The High Court held that depriving a constable of retirement benefits after 36 years of unblemished service, following a conviction with sentence remitted under the Probation of Offenders Act, was harsh and unreasonable. The Court substituted dismissal from service with compulsory retirement while awarding accrued monetary benefits.

What did the court decide?

Punishment converted from dismissal to compulsory retirement; accrued monetary benefits remitted within three months.

Birbal Vs Union of India — Pension and Retirement Benefits | Punjab & Haryana HC (2014)

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CIVIL WRIT PETITION No.16143 of 1998 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CIVIL WRIT PETITION No.16143 of 1998 (O&M) DATE OF DECISION: 14.01.2014

Birbal

…..Petitioner

versus

Union of India and others

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.....Respondents

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CORAM:-HON'BLE MR.JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE HON’BLE MR. JUSTICE ARUN PALLI

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Present: Mr. N.D. Kalra, Advocate for the petitioner.

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Mr. Puneet Jindal, Advocate with Ms. Vibha, Advocate for the respondents.

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SANJAY KISHAN KAUL, CHIEF JUSTICE : (Oral)

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Civil Misc. No.19477 of 2005

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For the averments contained in the application, respondent No.1 is deleted from the array of parties as there is no such necessity as the General Manager, Northern Railway has already been impleaded as respondent No.2.

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Memo of parties be accordingly amended.

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Civil Writ Petition No.16143 of 1998

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The petitioner, constable with the Fire Station of Ludhiana, has suffered an order of dismissal from service on account of his conviction by the trial Court under Section 326 of the Indian Penal Code (for short ‘IPC’) which imposed the sentence of RI for a period of 1½ years and fine of `2,000/-. On appeal being filed, learned Sessions Court converted the conviction to one under Section 324 of the IPC and gave benefit of Section 12 of the Probation of Offenders Act, 1958 (for short ‘the Act’).

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The aforesaid conviction triggered of disciplinary proceedings against the petitioner, who was served with a show cause notice dated

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Rani Neetu 2014.01.21 10:25 I attest to the accuracy and integrity of this document Chandigarh

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CIVIL WRIT PETITION No.16143 of 1998 (O&M)

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10.03.1998, predicated solely on the aforesaid conviction. The petitioner submitted detailed reply inter alia stating that the conviction pertained to a private family dispute incident and had nothing to do with the service and that Sessions Court had granted the benefit of Section 12 of the Act. However, an order was passed on 07.04.1998 dismissing the petitioner from service solely on account of his conviction.

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The petitioner assailed this order before the CAT but the CAT vide order dated 17.07.1998 was pleased to dismiss the petition in limine. That order is sought to be assailed in the present writ petition under Article 226 of the Constitution of India. We may add that in the penultimate paragraph of the impugned order, the CAT had taken note of the submission that the petitioner had filed a request for voluntary retirement on 10.03.1998, which is the date of the show cause notice but in view of the conviction being upheld, failed to accept even this plea.

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We have heard learned counsel for the parties.

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Learned counsel for the petitioner has sought to canvass that the conviction of the petitioner under Section 324 read with Section 325 IPC does not involve moral turpitude and in view of the release on probation, the disqualification from service in terms of Section 12 of the Act does not stand. It is a submission that no other material was considered for dismissal of the petitioner other than the aspect of his conviction. He has placed reliance on the Full Bench judgment of this Court in Om Parkash vs. The Director Postal Services (Posts and Telegraphs Dept.) Punjab Circle, Ambala and others, AIR 1973 Punjab and Haryana 1, Rajinder Singh vs. Board of School Education Haryana and another, 1996(4) RSJ 417 (DB), Krishan Dev vs. State of Haryana and others, 2003(3) RSJ 12 (SB) and Man Singh vs. State of Haryana and others, 2010(1) SCT 604 (SB) and submitted that the unblemished career of the petitioner has not been taken into Rani Neetu consideration and after 36 years of service, the petitioner was dismissed from 2014.01.21 10:25 I attest to the accuracy and integrity of this document Chandigarh

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CIVIL WRIT PETITION No.16143 of 1998 (O&M)

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service on the eve of his superannuation as his date of superannuation was 30.11.1998 while he was dismissed from service on 17.07.1998.

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On the other hand, learned counsel for the respondents has relied upon the judgment of Supreme Court in Karam Singh vs. State of Punjab and another, 1996(7) SCC 748 and Hari Chand vs. Director of School Education, 1998(2) SCC 383 . It has been emphasized in view of the pronouncements that there is a parity of facts on certain aspects as the Supreme Court was dealing with the case of a police Official in Karam Singh’s case (supra) where the conviction was ultimately under Section 323 IPC and accused was released on probation. The factor of the petitioner being a member of the disciplined police force was taken into account but the penalty was altered from dismissal to one of removal from service. The distinction between a conviction order and release on probation being another aspect has been emphasized as the latter only enables the delinquent not to undergo the sentence on showing good conduct during the period for which, the probation was granted.

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In view of the aforesaid legal position, learned counsel for the petitioner cannot seriously dispute that the consequences would flow qua the petitioner as the result of his conviction even if he was given the benefit of Section 12 of the Act. His primary argument before us is on the quantum of punishment where he has emphasized that an incident completely unrelated to the service should not affect the petitioner being deprived of all service benefits rendered for a period of 36 years without blemish. On the other hand, learned counsel for the respondent cannot seriously dispute that the punishment of dismissal from service cannot be sustained but submits that the same should be replaced by removal of service in view of pronouncement in Karam Singh's case (supra) .

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We are, however, of the view that the aspect of 36 years of Rani Neetu 2014.01.21 10:25unblemished service of the petitioner cannot be ignored while considering the I attest to the accuracy and integrity of this document Chandigarh

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CIVIL WRIT PETITION No.16143 of 1998 (O&M)

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consequences of his conviction and punishment under Section 324/325 IPC and the benefit being granted to him under Section 12 of the Act. We are of the view that though the continuation of the petitioner in service became untenable, to deprive the petitioner of the benefits of retirement having rendered such a prolonged period of unblemished service of 36 years, would not only be harsh only but also unreasonable. We have no hesitation in holding that there is no hard and fast rule on the appropriateness of quantum of punishment as that would depend on the facts and circumstances of the each case.

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We are of the view that the punishment of compulsory retirement in the given facts would suffice since the show cause notice was predicated only on the conviction order and the aspect of largely unblemished service of the petitioner was not taken into account while imposing punishment on the petitioner. We cannot permit the petitioner the benefit of voluntary retirement as that would amount to almost exonerating the petitioner and this is the reason which weighs with us to conclude that the punishment should be converted into one of compulsory retirement.

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The petition is, accordingly, allowed to that extent while replacing punishment from dismissal from service with that of compulsory retirement. The monetary benefits, which would accrue to the petitioner, be remitted to the petitioner within three months from the receipt of this order as prayed for by learned counsel for the respondents.

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Parties are left to bear their own costs.

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(SANJAY KISHAN KAUL) CHIEF JUSTICE

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14.01.2014

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neetu

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(ARUN PALLI) JUDGE

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Rani Neetu 2014.01.21 10:25 I attest to the accuracy and integrity of this document Chandigarh

Birbal v. Union of India

Case brief

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What did the court decide?

Birbal v. Union of India

Case brief

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