An employee can be dismissed/removed/reduced in rank, without conducting any enquiry after being convicted in criminal case, but it cannot be construed that every such conviction shall be followed by an automatic and mechanical removal of the convicted employee.

 The Himachal Pradesh High Court
Case Title: Mohinder Singh Vs Himachal Pradesh Transport Corporation.
CWPOA No. 6429 of 2019
Date of decision: 6.3.2023.
Citation: 2023 Live Law (HP) 12

The question before Hon’ble Court: Proviso (a) to Clause (2) of Article 311 of the Constitution of India read with Rule 19(i) of CCS (CCA) Rules 1965-Providing that on conviction an employee can be dismissed/removed/reduced in rank, without conducting any enquiry, but it cannot be construed that every such conviction shall be followed by an automatic and mechanical removal of the convicted employee.

Background of the Case: Petitioner was appointed as a Driver in Baijnath Unit of Himachal Road Transport Corporation (for short ‘HRTC’) on regular basis on 4.3.2000. On 21.6.2008 he was driving bus No. HP 53 A-7503, unrouted from Amritsar to Baijnath and when bus was entering the bus stand of Pathankot, it collided with Motor Cycle, causing death of Motor Cycle rider, leading to registration of FIR No. 65 dated 21.6.2008 under IPC Sections 279, 304-A and was convicted vide judgment dated  3.5.2012 by Judicial Magistrate First Class, Pathankot and, thereafter,  Appeal, Revision and Special Leave Petition preferred by him before  Sessions Judge Gurdaspur Punjab, High Court of Punjab and Haryana  and Supreme Court, respectively, were dismissed and ultimately he had  to undergo imprisonment for a period of 9 months 20 days w.e.f. 8.8.2014  to 28.5.2015 and before serving the aforesaid sentence he served HRTC  till 8.8.2014 and after serving the sentence he approached the authorities  for submitting his joining report along with copies of judgments passed in  Criminal Case, whereupon he was served a notice dated 9.6.2015 for  showing cause that why he should not be removed from the service  invoking provisions of Rule 19 of CCS (CCA) Rules, 1965 and after filing  response, he was removed from the service vide Office Order dated  8.9.2015. 

Case of Petitioner: PARA 6-7.

1.    Petitioner had challenged his order of removal from the services

2.    Despite having been sentenced for the same offence once, his removal from service on the same offence is illegal, arbitrary, discriminatory, unjustified, unconstitutional and violative of Articles 14 and 16 of the Constitution of India.

3.    Petitioner further contended that he has a right to continue in the job as conviction in a criminal case does not warrant automatic dismissal from the service and as a result of illegal and arbitrary act of the respondents, petitioner has been made to suffer financially and socially.

Case of Respondents: PARA 8-9.

1.    In view of provisions of Rule 19 of CCS (CCA) Rules, 1965, that after an employee is convicted and sentenced, employer has a right to remove him from service as provided under clause (i) of Rule 19 of CCS (CCA) Rules, 1965.

Judgment of the Hon’ble Court with reasoning: PARA 10-12.

1.    Plea taken by the petitioner that since he already had undergone a sentence for the said offence once, a penalty upon him cannot be imposed by the employer invoking provisions of CCS (CCA) Rules, was not sustainable.

2.    Bench clarified that the Article 311 of the Constitution of India and Rule 19(i) of CCS (CCA) Rules provide that on conviction an employee can be dismissed or removed or reduced in rank, on the ground of conduct which led to conviction on criminal charge, without conducting any enquiry, but the same should not be automatic removal.

3.    Employer having right to remove the employee from service, without enquiry, has to consider all relevant factors, like nature and gravity of offence, impact of conviction on service, suitability of employee in service after conviction, and competent authority is expected to exercise its power under these provisions after due caution and considerable application of mind.

"It also has to consider that the conduct of the employee was such as warrants imposition of penalty and, if so, what that penalty should b, as these provisions not only provide dismissal or removal from service but also in alternative, reduction in rank which definitely provides discretion to the competent authority to impose”.

 

4.    Alternative remedies available:

a)    Pointing out to the alternate remedy available to the petitioner to assail his removal order the court said that this Court refrains and hesitates from entertaining the petition under Article 226 of the Constitution of India directly without exhausting the alternative remedy available under the statute, but this Court is not inhibited from entertaining the petition under Article 226 of the Construction for not availing alternative remedy, in the exceptional circumstances.

b)    Since no exceptional circumstance was culled out in the petition for not exhausting the alternative statutory remedy, the bench instead of deciding the matter on merits by dealing the contentions of the parties, present petition disposed of the petition with liberty and permission to the petitioner to approach the Appellate Authority by filing an appeal afresh, if advised so.

c)    Such appeal, if preferred by the petitioner, shall be decided by the Appellate authority on or before 15th May, 2023, the bench concluded. -PARA 22.

Citations:

a)     Union of India Vs. P.D. Yadav, (2002).

b)     Om Prakash Vs. The Director Postal Services, AIR 1973 PH 1

c)      Order dated 2.3.2015 passed by High Court of Punjab and Haryana in CWP No. 18117 of 2013, titled as Dhani Ram Vs. U.H.B.V.N and another.

d)     Shankar Dass Vs. Union of India and another (1985) 2 SCC 358.

e)     Union of India and another Vs. Tulsiram Patel, (1985) 3 SCC 398.

f)      State of Haryana Vs. Balwant Singh, (2003) 3 SCC 362.

g)      Sushil Kumar Singhal Vs. Regional Manager, Punjab National Bank, (2010) 8 SCC  573.

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