Pradip Das vs The State Of Assam And Ors
2021 Latest Caselaw 1950 Gua

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GAHC010121822012




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/3840/2012

         PRADIP DAS
         S/O LATE KANDARPA DAS, R/O VILL. BICHENKUCHI GOSSOIPARA, P.S.
         PATACHAERKUCHI, DIST- BARPETA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND ORS
         REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, WATER
         RESOURCE DEPARTMENT, DISPUR, GHY-6

         2:THE CHIEF ENGINEER
         WATER RESOURCE DEPARTMENT
          DISPUR
          GHY-3
         ASSAM

         3:THE EXECUTIVE ENGINEER
          BARPETA WATER RESOURCE DEPARTMENT
          BARPETA
         ASSAM

         4:THE ASSTT. EXECUTIVE ENGINEER
          BAJAL WATER RESOURCES SUB DIVISION PATSALA
          DIST- BARPETA
         ASSA
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                                               BEFORE
                   HON'BLE MR. JUSTICE KALYAN RAI SURANA


         For the petitioner    : Mr. M.U. Mahmud.
         For the respondents   : Mr. B. Goswami, Addl. A.G.,

: Ms. S. Chutia, SC, W.R.D.

         Date of hearing       : 13.07.2021.
         Date of judgment      : 24.08.2021.



                                   JUDGMENT AND ORDER
                                               (C.A.V.)

Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. B. Goswami, learned Addl. Advocate General of the State, assisted by Ms. S. Chutia, learned Standing Counsel for Water Resources Department.

2) Pursuant to Govt. order dated 14.08.1997, the petitioner was appointed under Bajali END Division vide order dated on 20.08.1997. In course of time, the petitioner came to be posted as Section Assistant in Bajali Water Resources Sub-Division, Pathsala. On the ground that the petitioner is in judicial custody since 06.01.2009 in terms of order passed by the learned Sub- Divisional Judicial Magistrate (M), Baijali Sub-Division, Pathsala in connection with P.R.C. Case No. 59/2007 under Section 498A I.P.C., vide order dated 16.01.2009, the petitioner was placed under suspension under the provisions of Rule 6(2A) of the Assam Services (Discipline and Appeal) Rules, 1964 w.e.f. 06.02.2009 until further orders. In respect of the order of conviction, the petitioner had preferred an appeal, which was registered as Crl. Appeal No. Page No.# 3/11

18/2007, which was dismissed vide order dated 23.07.2008 by affirming the conviction. Accordingly, the petitioner preferred a revision before this Court, which was registered and numbered as Crl. Rev.P. No. 325/2008. This Court, did not interfere with the conviction of the petitioner, however, the sentence was reduced to 121 days, already spent in custody, however, the fine was enhanced from Rs.2,000/- to Rs.5,000/-, made payable to the PW-1 (i.e. wife of the petitioner). The petitioner had deposited the enhanced fine. Thereafter, vide representation dated 01.06.2009, the petitioner had prayed for being reinstated in service. However, pursuant to the Govt. communication dated 26.04.2011, the Executive Engineer, Barpeta Water Resources Division, Barpeta, by an office order dated 28.04.2011, had dismissed the petitioner from service with immediate effect by invoking Article 311(2)(a) of the Constitution of India read with Rule 10 of the Assam Services (Discipline and Appeal) Rules, 1964. The petitioner had submitted another representation dated 10.04.2012 for being reinstated in service. As nothing happened, the present writ petition was filed under Article 226 of the Constitution of India.

3) The learned counsel for the petitioner had submitted that conviction of offence under Section 498A IPC, relating to demand of dowry was not a serious crime which necessitated dismissal of service, after the petitioner had paid the fine imposed by this Court. It is submitted that the respondent no.3 had dismissed the petitioner without any enquiry and without drawing any departmental proceeding. In support of his submission, the learned counsel for the petitioner has placed reliance on the following cases, viz., (i) The Divisional Personnel Officer, Southern Railway & Anr. Vs. T.R. Chellappan & Ors., AIR 1975 SC 2216; (ii) Shankar Dass Vs. Union of India & Anr., (1985) 2 SCC 358; (iii) Page No.# 4/11

Union of India & Anr. Vs. Tulsiram Patel & Ors., (1985) 3 SCC 398: AIR 1985 SC 1416; (iv) Surjit Ghosh Vs. Chairman and Managing Director, United Commercial Bank & Ors., (1995) 2 SCC 474; (v) Government of A.P. & Anr. Vs. N. Ramanaiah, (2009) 7 SCC 165; (vi) Southern Railway Officers Association & Anr. Vs. Union of India & Ors., (2009) 9 SCC 24; (vii) Bisweswar Debnath Vs. State of Tripura & Ors., 2001 (3) GLT 419; (viii) Dulu Kumar Gogoi Vs. State of Assam & Ors., 2017 (3) GLT 455; (ix) Ambika Patra Vs. State of Assam & Ors., 2018 (3) GLT 440; (x) Mahendra Kumar Vs. Union of India and 5 Ors., W.A. 2729/2014 decided by High Court of Judicature at Allahabad on 12.09.2018; (xi) Madhab Gogoi Vs. The State of Assam & 5 Ors., W.P.(C) 4212/2020 decided by this Court on 15.10.2020.

4) Per contra, the learned Additional Advocate General of the State has submitted that in all criminal cases resulting in conviction, the dismissal of the Government servant is a must. Accordingly, it is submitted that as the petitioner was convicted and was sentenced to imprisonment of 121 days [i.e. about 4 (four) months] already undergone and was also sentenced to fine of Rs.5,000/- no departmental proceeding is necessary under the Assam Services (Discipline and Appeal) Rules, 1964.

5) The petitioner was removed from service under Article 311(2) of the Constitution of India read with Rule 10 of the Assam Services (Discipline and Appeal) Rules, 1964. Rule 10 is quoted below:-

10. Special Procedure in certain cases.

Notwithstanding anything containing in Rule 9-

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(i) Where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or

(ii) Where the disciplinary authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said, or

(iii) Where the government is satisfied that in the interest of the security of the state, it is not expedient to follow such procedure,-

the disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit:

Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.

6) It would also be relevant to refer to Article 311 of the Constitution of India, which is reproduced below:-

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(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:

Provided that where it is proposed after such inquiry, to impose Page No.# 6/11

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-

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

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final ."

7) Therefore, it is seen that it is permissible for the respondent authorities to remove/ dismiss the petitioner from service. It does not appear either from the provisions of Rule 10 of the Assam Services (Discipline and Appeal) Rules, 1964 or from Clause (a) of second proviso of Article 311(2) of the Constitution of India that any disciplinary proceeding is required to be drawn up.

8) The case of Mahendra Kumar (supra) is distinguishable on facts. In the said case, the petitioner was convicted in criminal proceeding under Page No.# 7/11

Section 498A and 304-B IPC against which an appeal was preferred under Section 374 Cr.P.C. and the Allahabad High Court had granted bail to the petitioner and the sentence was suspended. Thereafter, the petitioner had applied before the Bank for reinstating him in service. Thereafter, the Bank issued to the petitioner a show cause notice as to why he should not be dismissed. The petitioner had submitted his show-cause reply and the bank dismissed him from service. The writ petition filed by the petitioner against order of dismissal was dismissed permitting the petitioner to exhaust appellate remedy. The appellate authority had rejected the appeal. Thereafter, the writ petition was filed by the petitioner. The Allahabad High Court while interpreting Clause (a) of second proviso to Article 311(2) of the Constitution of India held that the said clause speaks of "conduct which has led to conviction on a criminal charge". Accordingly, it was held that merely because the sentence was suspended and/or the accused was released on bail, the conviction does not cease to be operative and it was further held that there can be no question of suspending the conduct. Accordingly, as the dismissal was upheld by the appellate authority and the facts and circumstances were duly considered by the authorities, the writ petition was dismissed. In the said case, the Allahabad High Court had extensively relied on the ration laid down in the case of T.R. Chellappan (supra) and Tulsiram Patel (supra). It may be mentioned that by the decision rendered in the case of Tulsiram Patel (supra), it was held that dismissal, removal or reduction in rank of person convicted on criminal charges is in public interest and therefore, not violative of Article 311(2) of the Constitution of India and thus, the earlier decision in the case of T.R. Chellappan (supra) was overruled.

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9) In the case of Shankar Dass (supra), the Supreme Court had observed that allegation for breach of trust was for a sum of Rs.500/-. The delinquent paid the amount and pleaded guilty and the trial Court convicted the petitioner but gave him the benefit of Section 4 of the Probation of Offenders Act, 1958. Thereafter, an instance was given by the Supreme Court that it was not contemplated that a Government servant who was convicted for parking his scooter in no-parking zone should be dismissed from service. Accordingly, the punishment of dismissal of service was held to be whimsical. Such a situation does not exist in this case. In the present case in hand, the conviction of the petitioner by the learned trial Court was upheld in appeal as well as in revision before this Court.

10) The case of Madhab Gogoi (supra) is also distinguishable on facts. The delinquent was a police constable and he was accused of acting in irresponsible manner during Covid-19 pandemic by taking away vehicle by breaking lockdown norms. No enquiry was held. The delinquent was also not convicted by Court of law. Under such circumstances, this Court had held that the authorities did not record satisfaction that enquiry could not be conducted and therefore, order of dismissal was set aside. Thus, on facts, this case is distinguishable. Similarly, in the case of Bisweswar Debnath (supra), no enquiry was held and no reason was assigned why it was not possible for holding the enquiry.

11) In the case of Ambika Patra (supra), the facts are distinguishable from the present case. As per the FIR, it was alleged that the petitioner had submitted forged documents and she was arrested. The learned trial Court held Page No.# 9/11

that the prosecution had miserably failed to prove the charges. Nonetheless, disciplinary enquiry was held, but though the petitioner had superannuated in the meantime, the proceeding continued and the petitioner was dismissed. This Court had returned a finding that there was no proceeding before Inquiry Officer and that the petitioner was not allowed to participate in any inquiry proceeding and therefore, it was held that the process was vitiated and therefore, the order of dismissal was set aside.

12) In the case of Surjit Ghosh (supra), the appellate authority acted as a disciplinary authority and as such, the petitioner lost a right to appeal, for which the decision of the disciplinary authority was interfered with. The facts of the said case are also distinguishable from the facts of the present case.

13) In the case of N. Ramanaiah (supra), the Supreme Court of India had set aside the order of the High Court interfering with the order of dismissal passed by the Government, as not sustainable by holding that the order was passed by the Government, which is also the appellate authority and that there was no jurisdictional error as Rule 14(2) of the A.P. Civil Services (CC & A) Rules, 1991 had enabled not only the appointing authority but any authority to which the appointing authority is subordinate to impose penalty. The Supreme Court of India did not accept the contention that substantive right to appeal had been taken away hence, violative of Article 311(2) of the Constitution of India and it was held that there is no right of appeal as such against the impugned order of dismissal made by the Government by holding that no appeal lies to the higher authority as a matter of right unless proved for by the law. This case is also not found relevant for the present case.

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14) In the case of Southern Railway Officers Association (supra) , the punishment imposed on the delinquent by the disciplinary authority and the punishment as upheld by the appellate authority was interfered by the High Court. While setting aside the decision of the High Court, the Supreme Court of India had held that acquittal of the delinquent cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority and it was also held to the effect that the dismissal order can be passed even if the delinquent official had been acquitted of the criminal charge. Therefore, this case also does not help the petitioner in any manner.

15) Thus, none of the 11 (eleven) cited cases are even close to the facts of the present case or point sought to be brought home, as such, the cited cases, except to increase the volume of this order, does not help the petitioner in any manner. It is seen that the learned counsel for the petitioner has cited the case of T.R. Chellappan (supra), which had been overruled in the case of Tulsiram Patel (supra), this conduct of the learned counsel to site an overruled judgment is strongly deprecated. In this regard, reference may be made to the case of Raj Kumar Vs. State of U.P., (2019) 9 SCC 427, where such a practice had been strongly deprecated.

16) The learned counsel for the petitioner has miserably failed to show that when the petitioner is convicted under Section 498A IPC and that his conviction was upheld in appeal before the learned first appellate Court and so also before this Court in criminal revision petition, still the petitioner could not have been dismissed and/or removed from service without a disciplinary Page No.# 11/11

proceeding. Therefore, when Clause (a) of the second proviso of Article 311(2) and Rule 10 of the Assam Services (Discipline and Appeal) Rules, 1964 envisage that a person convicted of criminal case where substantive punishment of 121 days of imprisonment was awarded/ imposed, the impugned order, thereby dismissing the petitioner is not liable to be interfered with on facts as well as in law.

17) Therefore, the present writ petition is devoid of any merit and the same is liable to be dismissed. However, as the petitioner has been dismissed from service, the Court refrains from imposing cost.

JUDGE

Comparing Assistant