Puna Ram Khurkhuriya vs The State Of Rajasthan ...
2023 Latest Caselaw 5579 Raj

[2023:RJ-JD:24892]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10281/2020

Puna Ram Khurkhuriya S/o Sh. Deva Ram Khurkhuriya, Aged About 56 Years, Resident Of Mugdara, Tehsil Riya Badi, Dist. Nagaur.

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary, Department Of Education, Government Of Rajasthan, Jaipur.

2. The Director, Secondary Education, Bikaner.

3. The District Education Officer, Secondary Education, Nagaur.

                                                                    ----Respondents


For Petitioner(s)             :    Mr. Sushil Solanki
For Respondent(s)             :    Mr. Sarwan Kumar



                        JUSTICE DINESH MEHTA

                                        Order

04/08/2023

1. By way of the present writ petition, the petitioner has

challenged the order dated 21.09.2020 whereby he has been

dismissed from the services by invoking powers under Rule 19 of

The Rajasthan Civil Services (Classification, Control & Appeal)

Rules, 1958 (hereinafter referred to as 'Rules of 1958').

2. The facts narrated briefly are that the petitioner was

appointed as Teacher Gr.II on 01.07.1995, whereafter he was

promoted as Lecturer (Hindi). During the course of his

employment an FIR for offences under Section 341, 323, 325/34

of Indian Penal Code being FIR No.312/2008 came to be

registered against him on 29.12.2008.

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3. On 14.07.2020, a disciplinary inquiry was initiated against

the petitioner essentially for the reason that the petitioner had not

disclosed the factum of registration of the FIR and pendency of

criminal case against him. A memorandum of charges framing two

charges was served on the petitioner.

4. The petitioner filed a reply to the disciplinary proceedings

and submitted that he has neither concealed any fact nor had he

made misrepresentation.

5. Before the disciplinary proceedings could advance, the

petitioner has been dismissed from the services vide order dated

21.09.2020 by the respondent No.2 while exercising powers under

Rule 19 of the Rules of 1958. The order of petitioner's dismissal

records that as the petitioner has been convicted vide order dated

10.01.2020 passed by the Civil Judge & Judicial Magistrate, Merta

for the offence under Section 341, 323, 325/34 of the IPC, his

continuation in the service is undesirable.

6. Oppugning the order dated 21.09.2020, the present writ

petition has been preferred. A Coordinate Bench of this Court has

passed an interim order in petitioner's favour on 05.10.2020 and

accordingly, the impunged order dated 21.09.2020 dismissing

petitioner from the services has been kept in abyeance.

7. The petitioner is continuing his services per force the interim

order passed by this Court.

8. The petitioner filed an appeal against the order of conviction

dated 10.01.2020 and during the pendency of the present writ

petition, learned Sessions Judge, Merta per-viam his order dated

24.02.2022 has set aside the petitioner's sentence and has given

[2023:RJ-JD:24892] (3 of 5) [CW-10281/2020]

him benefit of Section 4 of The Probation of Offenders Act, 1958

(hereinafter referred to as 'the Act of 1958').

9. The petitioner has placed on record the order dated

24.02.2022, passed by the appellate Court alongwith additional

affidavit and prayed that the order impugned be quashed and set

aside on the solitary ground that the conviction has been set

aside.

10. Learned counsel for the petitioner argued that the order

impugned is against the principles of natural justice as no

opportunity of hearing was afforded to the petitioner. While

iterating that disciplinary proceedings have already been initiated

against the petitioner, he argued that, there was no reason for not

proceeding with the inquiry and dismissing him from the services,

particularly when neither the offence was committed during the

course of employment nor did it amount to moral turpitude.

11. Without prejudice to above he argued that petitioner's

dismissal deserves to be set aside on sole count that the

conviction itself has been set aside and benefit of Section 4 of the

Act of 1958 has been given and consequently the disqualification

(if any) attached to the conviction has ceased to exist.

12. Mr. Solanki, learned counsel for the petitioner relied upon the

judgments passed in the case of Sube Singh Yadav Vs. State &

Ors.: S.B. Civil Writ No.13452/2012, decided on 30.11.2018,

Amit Singh Rathi Vs. State & Ors.: S.B. Civil Writ Petition

No.2205/2021, decided on 10.03.2023 and Badri Ram Vs.

State & Ors.: S.B. Civil Writ Petition No.14681/2019,

decided on 14.03.2023.

[2023:RJ-JD:24892] (4 of 5) [CW-10281/2020]

13. Mr. Sarwan Kumar, learned counsel for the respondent-State

on the other hand submitted that the petitioner's conviction has

been affirmed however, sentence has been set aside in view of the

concession given by the petitioner and benefit of Section 4 of the

Act of 1958 has been given. He argued that it cannot be said that

the petitioner's conviction has been set aside.

14. Learned counsel argued that whether to engage or to keep

an employee who has been convicted in service is a discretion of

the employer and if the State does not want to retain a person

with criminal antecedents, he cannot be thrusted upon the State.

15. Heard learned counsel for the parties and perused the

material available on record including the order dated 24.2.2022

whereby the petitioner has been given benefit of Section 4 and 12

of the Act of 1958 and his sentence has been set aside.

16. True it is, that the petitioner's conviction has not been set

aside on its merit but the same has been done on the basis of

concession given by the appellants wherein they have dropped

their challenge to the conviction. While deciding the petitioner's

appeal, though the Court has affirmed the conviction but has

given benefit of Sections 4 and 12 of the Act of 1958, while clearly

indicating that the effect of conviction will not affect the

petitioner's service career.

17. In the opinion of this Court, when the petitioner's sentence

has been set aside and the benefits of Sections 4 and 12 of the

Act of 1958 have been given, it cannot be said that the

disqualification still continues. The reason for the petitioner's

disqualification/conviction ceases to continue and the basis for

dismissal goes away.

[2023:RJ-JD:24892] (5 of 5) [CW-10281/2020]

18. As the sole reason for which the petitioner was dismissed

from service was the conviction and since the petitioner has been

given benefit of Section 4 of the Act of 1958, the very edifice of

the dismissal has shattered resulting in falling of the impugned

order flat on the ground.

19. The present writ petition is therefore, allowed and the order

dated 21.09.2020 is hereby quashed and set aside.

20. Needless to observe that the respondent-State shall be free

to revive the disciplinary proceedings which were initiated against

the petitioner by way of memorandum of charges dated

14.07.2020. The same will proceed with in accordance with law.

21. Stay application stands disposed of.

(DINESH MEHTA),J 73-AbhishekS/-

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