This petition under Article 226/227 of the Constitution of India, filed by the Petitioners - The State of Madhya Pradesh and the Dean. M.G.M. Medical College, Indore is directed against the Order dated 31-1-2000, passed by the Indore Bench of M.P. State Administrative Tribunal, (for short 'the SAT') quashing the order of removal of respondent No. 1 - Dr. Sheetal Kumar Bandi, passed by the State Government on 28-9-1999.

2. Respondent - Dr. Bandi on the date of his removal was working on the post of Professor, Surgery (Paediatrics) in M.G.M. Medical College, Indore, a Government institution. He, amongst others, was prosecuted on the charge under section 337 of the Indian Penal Code, for being negligent in performing operation on a two years old healthy child mistaking him for another child who was to be operated upon for Hernia. After trial he was convicted by the Magistrate for the said charge and sentenced to six months rigorous imprisonment with fine Rs. 500. On appeal, the conviction was affirmed but the sentence of imprisonment was set aside leaving the sentence of fine unaltered, by Additional Sessions Judge, Indore, vide his judgment dated 10-5-1999 in Criminal Appeal No. 175/1998. Following this conviction and taking recourse to Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (for short, 'the State Rules') and after consulting the State Public Service Commission, the State Government on 28-9-1999, imposed major penalty of removal on the respondent. The respondent challenged his removal before the SAT by filing an application (O.A. No. 1611/1999) which has been allowed and the impugned removal has been quashed with all consequential benefits to the respondent, vide Order dated 31-1-2000 which is under challenge before this Court.

3. The SAT has quashed the order mainly on the ground that no opportunity of hearing was accorded to the respondent employee to show cause against the proposed penalty which was imposed even when the Revision filed by the respondent against his conviction was pending before the High Court.

4. We have heard Shri Z.A. Khan, learned Additional Advocate General for the petitioner-State and Shri Amit Agrawal, learned counsel for the respondent-employee.

5. Shri Khan, learned A.A.G. has assailed the order of SAT as contrary to law. He submitted that after the 42nd Amendment of the Constitution, Article 311 as it stands after amendment, now no more required that any second opportunity of making representation at the stage of imposing penalty should be given to the delinquent employee. Rule 19 of the State Rules, 1966 also did not postulate any such opportunity. It was further contended that the State Government was not obliged in law to wait for the result of the Criminal Revision filed by the respondent inasmuch as no stay was granted by the High Court in that Revision. He has placed reliance on a Supreme Court decision in Tulsiram, AIR 1985 SC 1416.

As against it, Shri Amit Agrawal, learned counsel for the respondent strongly defended the order of the SAT and submitted that notwithstanding the said amendment in Article 311 of the Constitution or of Rule 19 of the State Rules, it was still necessary to offer the respondent an opportunity of making representation on the penalty proposed to be imposed. He submitted that although clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government, power to dismiss or remove a person from service on the ground of conduct which has led to his conviction on a criminal charge, but that power like any other power has to be exercised fairly, justly and reasonably. The respondent was entitled to demonstrate to the Disciplinary Authority that the penalty of dismissal or removal was not warranted and it was wholly disproportionate to the charge for which he was convicted by the Court. Reliance is placed on Supreme Court decisions in Shankar Dass, AIR 1985 SC 772 and Sunil Kumar, 2001(2) Supreme Today 199.

6. Having heard learned counsel for the parties and given our anxious consideration to the rival contentions, we are of the considered view that this petition must fail.

7. Before we dwell upon the question regarding necessity of giving opportunity of hearing, it may be stated at the outset that we are told that in Revision decided during the pendency of this petition, the respondent has been released by this Court after due admonition under section 3 of the Probation of Offenders Act. Court has noted that though the respondent Doctor was guilty of not exercising the due care and caution, nevertheless, several other factors had contributed equally in performance of the said operation by him on a wrong person. While section 12 of the Probation of Offenders Act, is of no avail to the respondent employee, the facts and features of the case were very relevant and required to be taken into consideration before imposition of any penalty. It is apt here to refer certain observations made by the Apex Court in the case of Shankar Dass (supra). Chandrachud, C.J. (as he then was), speaking for the Court in the very first paragraph of its judgment remarked:

“Cases which evoke sympathy come frequently before the Court. But pity not often. The case before us has a unique story to tell the story of a crime committed under the stress of personal misery compounded by the apathy of the Establishment.”

In that case the concerned employee was convicted under section 409 of Indian Penal Code and was released under section 4 of the Probation of Offenders Act, 1958. As a result of his conviction he was dismissed from service. The Apex Court held: “But the right to impose a penalty carries with it the duty to act justly'. Considering the facts of this case, there can be no two opinions that penalty of dismissal from service imposed upon the appellant is whimsical.”

8. In the instant case also non-observance of the legal requirement apart, the State Government did not seem to have acted justly and the penalty of removal imposed upon the appellant, in the facts and circumstances of the case, appeared arbitrary rather whimsical. It is really a matter of pity that a person having put in blotless career as a Surgeon for nearly 34 years should, at the fag end of his career, be dealt with so shabbily for one time mistake of his life for which the Court itself has taken a lenient view and released him under the provisions of the Probation of Offenders Act. The Disciplinary Authority in the instant case, seems to have acted with a pre-determined mind.

9. Coming to the point involved in the case, the same stands resolved by a recent Supreme Court decision in Sunil Kumar (supra) wherein the Apex Court dealing with a similar situation with reference to Rule 19 of Central Civil Service (Classification, Control and Appeal) Rules, which is pari-materia to the Rule 19 of the State Rules, held :

“Rule 19 of the Central Rules which contemplates that if any penalty is imposed on a Government Servant on his conviction on a criminal charge, the Disciplinary Authority can make such order as it deems fit (dismissal from service is one such order contemplated under Rule 19) on initiating disciplinary proceedings and after giving the delinquent officer an opportunity of making a representation on the penalty proposed to be imposed. As a matter of fact, this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a). Rule 19 of the Central Rules is in conformity with the above provision of the Constitution. This, is we see, is a summary procedure provided to take disciplinary action against a Government Servant who is already convicted in a criminal proceeding, (emphasis supplied)

10. Shri Khan, learned Additional Advocate General strenuously urged that Rule 19 of the State Rules, unlike Rule 19 of the Central Rules does not provide for giving second opportunity of making representation at the stage of imposing penalty. He, thus, submitted that this Rule 19 read with proviso (2)(a) of Article 311 of the Constitution makes it clear that no such second opportunity is now required to be given to a delinquent official who has either been held guilty after enquiry or convicted on a criminal charge by some court. We are not persuaded by the argument. It is true that although Rule 19 of the State Rules does not in terms provide for any such second opportunity of making representation against the proposed penalty, as is available under the Rule 19 of the Central Rules, nevertheless, as held by the Supreme Court in Sunil Kumar (supra) 'this type of disciplinary procedure is contemplated in the Constitution itself as could be seen in Article 311(2)(a)”. So any State Rule has to be in conformity with the above provision of the Constitution. The Apex Court seem to have resiled from the earlier view expressed in Tulsiram (supra) and reverted back to the view taken in Chellappan, AIR 1975 SC 2216. Relying on the decision in Chellappan (supra). Division Bench of this Court in Tikaram, 1978 MPLJ 57 = 1978 JLJ 201, dealing with the same Rule 19 of the State Rules, held:

“Conviction on a criminal charge does not necessarily mean that the employee concerned should be removed or dismissed from service. The nature of penalty will naturally depend upon the gravity of the offence for which the employee is convicted. It is, therefore, necessary for the disciplinary authority to decide even in such case, whether in the facts and circumstances of a particular case, what penalty, if at all, should be imposed on the delinquent employee. In determining this question, delinquent employee should be noticed to put forward his point of view and the circumstances of the case, why no penalty or a lesser penalty should be imposed on him.”

Although decision in Chellappan (supra) was over-ruled in Tulsiram, however, the Apex Court, as already pointed out, in Sunil Kumar (supra) has reaffirmed the view taken in Chellappan. This Court's decision in Tekaram (supra) would also therefore, hold ground.

11. A bare reading of Rule 19 of the State Rules in the context of the proviso (2)(a) of Article 311, will make it abundantly clear that these provisions are merely enabling and do not enjoin the disciplinary authority to impose the extreme penalty of dismissal or removal in every case of conviction, say for trivial offences or technical offences not involving 'moral turpitude'. Principle of natural justice and fair play, therefore, required that the authority concerned should apply its mind to the facts and circumstances of a particular case so as, to decide what penalty, if at all, is required to be imposed on the delinquent employee and in order to determine this question, the delinquent employee should also be heard and his view point should be taken into consideration. Even in the case of Tulsiram (supra), relied upon heavily by the learned Additional Advocate General, their Lordships cautioned: 'The Disciplinary Authorities are expected to act justly and fairly after taking into account all the facts and circumstances of the case and if they act arbitrarily and impose a penalty which is unduly excessive, capricious or vindictive, it can be set-aside…………….”

12. In Shankar Dass (supra), the Apex Court lamented “despite observations of the learned Magistrate the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service”. In the instant case also, the authorities concerned do not seem to have considered the facts and circumstances of the case which led to the conviction of the respondent employee and instead acted with a pre-determined mind while imposing the penalty of removal. So, even if the respondent may not be held entitled to be heard on the question of penalty, then also his removal was liable to be set-aside as the penalty of removal from service imposed upon him is whimsical.

13. For what we have said above, this petition must fail and is dismissed with costs. Counsel's fee Rs. 5,000, if certified.

Petition dismissed.