Lal Babu Paswan v. ………
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 1748 of 2015 Lal Babu Paswan ---------- Versus ………. Petitioner 1. Union of India through Secretary, Ministry of Labour and Employment, New Delhi. 2. The Regional Provident Fund Commissioner, Employees Provident Fund Organization, Ranchi. ………. Respondents. ---------- CORAM: THE HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioner For the Resp. No. 1 For the Resp. No. 2
Legal Reasoning
08/ 27.03.2023 Heard the parties. ----------- : : : ----------
Legal Reasoning
Mr. Rohit Sinha, Advocate Ms. Bakshi Vibha, Advocate Mr. Bharat B. Prasad, CGC Mr. Yogendra Prasad, Advocate 2. In the instant writ petition prayer has been made for quashing the order of dismissal dated 15.09.2004, issued by respondent No. 2. 3. The brief fact giving rise to the instant writ application is that while the petitioner was working as Upper Division Clerk in the office of Regional Commissioner, Employees Provident Fund Organization, Ranchi, an FIR was lodged against him on 14.06.2002, being R.C. No. 8(A)/2002(R), under Section 7 of the P.C. Act, 1988, by the order of S.P., C.B.I., Ranchi. The said FIR was lodged on the basis of a complaint made by one Nand Lal Prasad who has alleged that the petitioner had demanded a sum of Rs.1200/- by way of illegal gratification to process the loan application of Complainant’s brother of Rs.2,00,000/-. Therefore, the CBI after completing the formalities, conducted a trap against the petitioner, who was caught red handed. Thereafter, the Special Judge, CBI, Ranchi vide his order dated 19.02.2004, passed in R.C. Case No. 8(A)/ 2002 (R) after hearing the parties and perusal of the evidences and documents brought on record, passed the order of conviction against the petitioner to the effect that, “thus considering the arguments of both parties and the gravity of the offence committed by the accused, Lal Babu Paswan, he is hereby sentenced to undergo R.I. for 2 (two) years u/s. 7 of the P.C. Act and 2 fined Rs.5,000/- in default thereof 5 months S.I. Further, he is sentenced to undergo R.I. for 2½ years u/s. 13(2) of the P.C. Act and he is also fined Rs.7,000/- in default thereof to undergo 7 months S.I. Both sentences shall run concurrently and the period already undergone shall be set off”. Against the said order of conviction, the petitioner preferred Cr. Appeal No. 482 of 2004 and this Hon’ble Court vide its order dated 28.08.2006, dismissed the said appeal by affirming the order of conviction passed by the Special Judge, CBI Ranchi. Thereafter, the petitioner preferred S.L.P. (Cr.) No. 704 of 2008 before the Hon’ble Apex Court which also stood dismissed vide order dated 05.12.2008. 4. It is the further case of the petitioner that after his arrest on 14.06.2002, he was suspended in terms of Sub-Rule- 2(a) of Rule 6 of the EPF Staff CCA Rules, 1971 vide office order dated 24.0.2002. Thereafter, after issuance of show-cause and considering the reply of the petitioner to the same, the respondents have passed the order of dismissal dated 15.09.2004, which is the subject matter of challenge before this Court. 5. Mr. Rohit Sinha, learned counsel appearing for the petitioner assiduously urges that the impugned order falls within the category of major punishment and the availability of the safeguards provided under Article 311 is contingent upon and limited to cases where the power of termination of services of an employee/ officer is exercised by the disciplinary authority by way of punishment has not been adhered with in the instant case. Learned counsel further argues that the impugned order was passed without waiting for the result of appeal preferred by the petitioner before the Hon’ble Court and without affording opportunity of hearing and as such, the fundamental rights of the petitioner has been violated as the petitioner had taken the remedy of Statutory Appeal. 6. Learned counsel for the petitioner submits that in view of ratio laid down by the Hon’ble Apex Court in case of Union of India Vs. Tulsi Ram Patel, reported in AIR 1985 SC 1416, the case of the petitioner should be reconsidered. It has been argued by the learned counsel that since no consideration has been shown by the respondents, the order of dismissal is fit to be quashed and set aside. He further submits that without initiation of 3 regular departmental proceeding, even if the petitioner has been convicted in criminal case, the order of dismissal, which is the capital punishment, ought not have been passed by the respondents. 7. Per contra, counter-affidavit has been filed. Learned counsel appearing for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that reasonable opportunity has been given to the petitioner before issuing the order of dismissal dated 15.09.2004, with due compliance of the principles of natural justice and therefore, the prayer of the petitioner is fit to be dismissed. Learned counsel further argues that the Special Leave Petition of the petitioner has been dismissed on 05.12.2008 by the Hon’ble Apex Court and after lapse of more than 6 years, the instant writ petition has been filed which is not maintainable at this belated stage. Learned counsel further argues that the disciplinary authority has rejected the representation of the petitioner dated 09.08.2004 on the ground that during the pendency of the criminal appeal preferred by the petitioner only the sentence is suspended and not the conviction and thereafter, the order dated 15.09.2004 has been passed in accordance with law. Learned counsel further argues that dismissal order dated 15.09.2004 is based on the material available on records as well as the judgment and order of conviction of the learned Trial Court for the offences under Sections 7 and 13(2) of the P.C. Act. Learned counsel for the respondents further submits that the contention of the learned counsel for the petitioner is totally misconceived as in case of conviction, even a show cause notice is not required. He further submits that rightly the petitioner was served with a show cause notice and after considering his reply, the order of dismissal has been passed, there is no illegality or infirmity in the impugned order of dismissal. Hence, the writ petition filed by the petitioner is not maintainable in the eyes of law of and the same is fit to be dismissed. 8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that no interference is warranted in the instant case. Admittedly, the petitioner has been dismissed on the ground of conviction. 4 9. Before delving deep into merits of the case, it would be apposite to see the provision of Clause (a) of the second proviso to Article 311 (2) of the Constitution of India, which stipulates that the requirement of clause (2) of holding an inquiry consistent with the principles of natural justice would not apply where a person is dismissed, removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. The action of the respondents cannot be regarded as having acted with perversity in dismissing a person who has been convicted of a serious offence of the nature involved in pursuance of the provisions of the second proviso to Article 311(2) of the Constitution of India. 10. Now, the issue as has been argued by the learned counsel for the petitioner that as to whether the Tulsiram Patel (supra) is attracted in the instant case or not? 11. The Hon’ble Allahabad High Court while dealing with the aforesaid aspect, in case of State of U.P. Vs. Prem Milan Tiwari, reported in 2015(3) ALJ 528, has clearly observed as under:-
Decision
9. The decision in Shankar Dass, ((1985) 2 SCC 358 : AIR 1985 SC 772), (supra) was considered in a subsequent judgment of the Supreme Court in Deputy Director of Collegiate Education (Administration), Madras v. S. Nagoor Meera, (1995) 3 SCC 377 : (AIR 1995 SC 1364). That was a case involving a conviction, under Section 420 of the Penal Code and Sections of the Prevention of Corruption Act, 1947. The respondent, following the order of conviction was served with a show cause notice for termination which was quashed by the Tribunal. The Tribunal had held that until an appeal against the conviction is disposed of,-, action under clause (a) of the second proviso to Article 311(2) was not permissible. This was held to be not reflective of the correct position in law. Following the decision in Shankar Dass, the Supreme Court held as follows: “What is really relevant thus is the conduct of the Government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher-court, it may not be advisable to retain such person in service. As stated above, if he 5 succeeds in appeal or otiier proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.” 10. In a more recent judgment of the Supreme Court in Government of A.P. v. B. Jagjeevan Rao, (2014) 7 SCALE. 434, the respondent had been charge-sheeted and con victed after trial of an offence under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act, 1988. Following the conviction, the respondent was dismissed from ser vice. The High Court had set aside the action and reversed the order of the Tribunal after noticing both the decisions in Tulsiram Patel ((1985) 3 SCC 398 : AIR 1985 SC 1416) and S. Nagoor Meera ((1995) 3 SCC 377 : AIR 1995 SC 1364) (supra). The Supreme Court observed as follows: to “Regard being had the aforesaid enunciation of law and keeping in view the expected standard of administration, conviction on the charge of corruption has to be viewed seriously and unless the conviction is annulled, an employer cannot be compelled to take an employee back in service…” 12. Admittedly, the petitioner has been dismissed from the services on account of his conviction in criminal case. The plea of the learned counsel for the petitioner that no consideration has been shown is totally misconceived. Nothing has been brought on record to show that order of conviction has been stayed by the Superior Court. Since the order of dismissal is based on conviction in criminal case, this Court is satisfied with the order of dismissal. There is no illegality or infirmity in the impugned order. 13. Resultantly, the writ petition stands dismissed. kunal/- (Dr. S.N. Pathak, J.)