Case No. : Wa/251/202 vs The State Of Assam And 3 Ors
2021 Latest Caselaw 3340 Gua

GAHC010143162021




                          THE GAUHATI HIGH COURT

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


                        Case No. : WA/251/2021
                        PRADIP DAS
                        S/O- LATE KANDARPA DAS,
                        R/O- VILL.- BICHENKUCHI (GOSSOIPARA),
                        P.S. PATACHARKUCHI, DIST. BARPETA, ASSAM

                               VERSUS

                        THE STATE OF ASSAM AND 3 ORS.
                        REP. BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
                        WATER RESOURCE DEPARTMENT, DISPUR, GUWAHATI-6.

                        2:THE CHIEF ENGINEER
                        WATER RESOURCE DEPARTMENT
                        GUWAHATI-3 ASSAM

                        3:THE EXECUTIVE ENGINEER
                        BARPETA WATER RESOURCE DIVISION
                        BARPETA ASSAM

                        4:THE ASSISTANT EXECUTIVE ENGINEER
                        BAJALI WATER RESOURCE
                        SUB-DIVISION PATHSALA DIST. BARPETA ASSAM

            Advocate for the Petitioner : MR. M U MAHMUD
            Advocate for the Respondent : SC, WATER RESOURCE

-BEFORE-

HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA HON'BLE MR. JUSTICE SOUMITRA SAIKIA 08-12-2021

Sudhanshu Dhulia, C.J.

Heard Mr. MU Mahmud, learned counsel for the appellant. Also heard Mr. PN Goswami, learned Additional Advocate General, Assam and Ms. S Chutia, learned Standing Counsel, Water Resources Department for the respondents.

2. This writ appeal has been filed by the writ appellant/petitioner against the order of the learned Single Judge dated 24.08.2021 by which the writ petition, being WP(C) 3840/2012 was dismissed.

3. The material facts of the present case are as follows;

The writ appellant/petitioner was appointed as Sections Assistant in the Department of Water Resources, Government of Assam on 20.08.1997. The writ appellant/petitioner married Smti. Barnali Das on 09.08.2005. Thereafter, an FIR was filed on 25.03.2007 by the wife of the present writ appellant/petitioner wherein, inter alia, allegations of demand of dowry and cruelty were made against him. The writ appellant/petitioner faced the trial. The trial Court by its order dated 13.07.2007 convicted the writ appellant/petitioner under Section 498A IPC and sentenced him to undergo rigorous imprisonment for six months and also to pay a fine of Rs.2000/-, in default, to undergo simple imprisonment for two months. The charges which were framed against the writ appellant/petitioner were that he demanded dowry of Rs.2 lakhs and not receiving the dowry, he used to torture his wife. An appeal was filed against the order of conviction which was dismissed. Ultimately, the writ appellant/petitioner filed a criminal revision petition, being Criminal Revision Petition No.325/2008 before this Court wherein although conviction was upheld, the sentence was reduced to the period already undergone which was 121 days and enhanced the amount of fine to Rs.5,000/-. After the order of this Court which was passed in criminal revision petition on 26.03.2009, the writ appellant/petitioner submitted a representation before the authority on 01.06.2009 praying for withdrawal of the suspension order and for reinstating him in his service since he had undergone the sentence imposed upon him by this Court and also paid the fine. However, his representation was rejected on 28.04.2011 and he was dismissed from service. Earlier to that, the writ appellant/petitioner was placed under suspension on 16.01.2009. The order of dismissal from service was challenged in the aforementioned writ petition which was dismissed by the impugned order.

4. Argument of the learned counsel for the writ appellant/petitioner before the learned Single Judge was that he had been convicted under Section 498A IPC and ultimately he had been sentenced to 121 days. This conviction was not for heinous crime and therefore, an automatic dismissal from service on the ground that he had been convicted by a criminal court is not the requirement of law and he is liable to be reinstated in service with minor punishment. This argument, however, did not find favour of the learned Single Judge. The learned Single Judge has relied upon Clause (a) of second proviso of Article 311(2) of the Constitution of India along with the Rule 10 of the Assam Service (Discipline and Appeal) Rules, 19641 and the learned Single Judge was of the opinion that once a government servant has been convicted by a criminal court, the only punishment which can be given to him is either of the three punishments, i.e. dismissal, removal and reduction in rank and that has to be done without holding departmental proceeding. Since this is the provision given under the law, the punishment imposed upon the writ appellant/petitioner could not be justified. Therefore, the writ petition was dismissed.

5. The facts of the case have already been narrated above. The admitted fact is that the petitioner was convicted by the trial Court on 13.07.2007 under Section 498A IPC and sentenced him to undergo rigorous imprisonment for six months and also to pay a fine of Rs.2000/-, in default, to undergo simple imprisonment for two months. Ultimately, in criminal revision petition, although the conviction was upheld by this Court, the sentenced was reduced to the period already undergone and enhanced the amount of fine to Rs.5,000/-. After paying the fine as directed by this Court, the writ appellant/petitioner moved an application for his reinstatement in service. It appears that the appointing authority of the petitioner sought an opinion from the Legal Remembrancer and it appears that the opinion was that the writ appellant can be dismissed from service in view of the provision given under Article 311(2)(a) of the Constitution of India read with Rule 10 of Assam

10) Major Penalties. - If the Disciplinary Authority having regard to its findings on the charges and on the basis of evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of rule 7 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed: Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.] Service (Discipline and Appeal) Rules, 1964. The dismissal order dated 28.04.2011 reads as under:

"OFFICE OF THE EXECUTIVE ENGINEER :: BARPETA W.R. DIVISION BARPETA No.BWRD/Estt/416/Pt-I/07/19 Dated:28.04.2011

OFFICE ORDER

In pursuance of the Govt. letter No.WR(E) 56/2010/21 dt. 26/04/2011 and view offered by the Judicial Deptt. as reported therein, Sri Pradip Das, Section Assistant (under suspension) is hereby dismissed from service by invoking Article 311(2)(a) of the constitution read with Rule 10 of Assam Service (Discipline and Appeal) Rule 1964. This order will come in force with immediate effect.

Sd-

Executive Engineer Barpeta W.R. Division Barpeta"

6. Undoubtedly the writ appellant/petitioner has been convicted by a criminal court on a criminal charge. The question is whether in all such cases of conviction of a government servant, a major penalty i.e. dismissal, removal, reduction in rank must follow automatically? The answer is in negative i.e. it cannot be done automatically, as the appointing authority has to apply its mind to the facts of the case such as the nature of crime, etc. It has been held by the majority in the Constitution Bench of the Hon'ble Supreme Court in the case of Union of India and another vs. Tulsiram Patel (AIR 1985 SC 1416) as to what needs to be done in such cases. Paragraph 127 of the said case reads as under:

"127. Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case (AIR 1975 SC 2216). This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India (1985) 2 SCC 358 : (AIR 1985 SC 772) this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.

The Second Proviso -- Clause (b)"

7. Thus, automatic dismissal, removal and reduction in rank is not a mandatory requirement after a government servant is convicted by a criminal court. It will depend upon the fact as to on what charges he was convicted, what was the nature of the offence, etc. All these need to be examined by the appointing authority and when the appointing authority ultimately comes to the conclusion that a major penalty is required to be given, then it has to state the reason as to which major penalty needs to be given.

8. We have already seen the telegraphic order dated 28.04.2011, which does not assign any reason for dismissing the writ appellant/petitioner from service. In other words, there has been no application of mind by the appointing authority as to the nature of charges against the petitioner, the quality of crime, etc.

9. We have heard the learned counsel for the writ appellant/petitioner at length and we are of the considered view that the writ appellant/petitioner had been convicted under Section 498A IPC for cruelty against his wife. There is a clear cut finding that cruelty was for the reason that the petitioner demanded dowry of Rs.2 lakhs. The order of conviction passed by the trial Court was upheld in appeal as well as in criminal revision, though sentence was reduced. Therefore, we are of the considered view that although a major penalty ought to have been given to the writ appellant/petitioner, under the facts and circumstances of the case, yet instead of dismissal from service, compulsory retirement would have been the proper punishment which would have met the ends of justice. Compulsory retirement also amounts to removal from service and is also one of the major penalties. Therefore, this writ petition is partly allowed. We convert the punishment from dismissal of service to compulsory retirement. The compulsory retirement shall be counted from 24.08.2011 and the writ appellant shall be entitled to the pensionary benefits and other post retirement benefits if he is so entitled to after compulsory retirement, under the present Service Rules.

                  JUDGE                        CHIEF JUSTICE



Comparing Assistant