K. Shanmugam v. The Director, The Employment & Training Department, Chepauk

(Prayer: Original Applications filed before the Tamil Nadu Administrative Tribunal praying to quash the proceedings of the respondent in Se.Mu.Aa.No.A.Pa.2/119436/94 dated 06.11.2001, has been transferred to this Court on the abolition of the Administrative Tribunal and renumbered as W.P.No. 4505 of 2007.)

1. The petitioner, while working as Workshop Assistant was arrested on 14.9.1994, in connection with Crime No.442/1994, for the offence under Section 342 and 302 of IPC.

2. In view of the arrest and detention, the petitioner was placed under suspension on 30.1.1995.

3. It is not disputed that the petitioner was acquitted of the charge under Section 302 IPC; but was convicted for an offence under Section 343 of IPC and imposed a fine of Rs.1,000/-.

4. The appeal filed by the petitioner against conviction and sentence of fine also stands dismissed.

5. In view of the conviction and sentence, the petitioner was issued a show cause notice under Rule 17(c)(1)(i)of Tamil Nadu Civil Services Rules (hereinafter referred to as 'the Rules'), on 30.9.2001, to show cause as to why punishment of removal from service be not awarded to him?

6. The petitioner submitted his explanation to the show cause notice, by taking a stand that he was only sentenced to pay a fine, therefore, the proposed action cannot be taken against him, under the rules.

7. On considering the explanation of the petitioner, the impugned order dated 6.11.2001 was passed by the respondent, removing the petitioner from service.

8. The translated copy of the impugned order reads as under:-

"PROCEEDINGS OF THE DIRECTOR OF EMPLOYMENT AND TRAINING, CHENNAI-5.

Present: Thiru K.Sellamuthu, I.A.S.

Proceedings No. OP2/119436/94 ��������������������������������������Dated: 6.11.2001.

Sub: Establishment – Thiru K.Shanmugam, Depot Assistant, Government Industrial Training Institute – Punished by Court in criminal case – Departmental disciplinary proceedings taken – issue of final order – Reg.

Ref: 1. Proceedings of the Deputy Director/Principal, Government Industrial Training Institute, Coimbatore No.8702/B3/94, dated 30.1.95.

2. Show Cause Memo No.OP2/118436/94 dated 13.9.2000 of the Joint Director (Handicrafts Training).

3. Explanation of Thiru K.Shanmugam, Depot Assistant (under suspension) dated 10.10.2004.

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ORDER:

ThiruK.Shanmugam, worked as Depot Assistant in Government Industrial Training Institute, Coimbatore was arrested in a criminal case by Perundurai Police and produced before the Court of J.M., Perunduri and remanded in Sub-Jail, Perundurai. Following this, as per the proceedings of the Deputy Director/Principal, Government Industrial Training Institute, Coimbatore first cited he was placed under suspension with effect from 14.9.94. He was enlarged on bail on 7.10.94.

Sessions Case No.32/1995 was registered in the Court of Second Additional Sessions Judge, Periyar District, Erode and the following charges were framed against him.

1. Wrongful confinement - Section 343 of Indian Penal Code

2. Punishment for murder - Section 302 of Indian Penal Code

The above case was tried and judgment was delivered on 4.10.98. In the judgment it was found that the second charge was not proved and the first charge was proved; and that for the proven charge a fine of Rs.1000/- was imposed and for the default in payment of the fine rigorous imprisonment for 4 months was imposed. Thiru K.Shanmugam remitted the fine amount of Rs.1000/-.

As per Rule 20(1) of Tamil Nadu Government Servants Conduct Rules, 1973 every Government Servant shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service. In view of the above mentioned acts, he has tainted the image of the Government by his unbecoming act and thus violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules, 1973. In the above mentioned judgment of the court, the first charge against him has been proved. The criminal act done by him is not an act to be done by a Government servant. Through this act, it is proved that he has violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules, 1973.

A show cause notice dated 13.9.2000 was issued to him under Section 17(c)(1)(i) of Tamil Nadu Civil Services Rules asking him to show cause as to why suitable punishment should not be imposed commensurating the criminal act done by him.

For this, in his explanation dated 10.10.2000 he has stated that it is true that in the case registered against him under Section 343 of Indian Penal Code he was convicted imposing a fine of Rs.1000/-; that in the case registered under Section 302 of Indian Penal Code he was acquitted; and that he has paid the fine amount in the court, for the reason that if any person is imposed with a fine he would be permitted to go out of the court only if he pays the fine amount and then only he could prefer appeal. Against the conviction he has preferred an appeal before High Court of Madras in C.A.No.578/97 and submitted necessary documents to prove that he is innocent; and stated that there is no relevance to his job and the case; that the case was not related to his job and not committed during office hours; and therefore till the final judgment in the criminal appeal he need not be considered as accused and need not be construed as violated Rule 20(1) of Government Servants Conduct Rules 1973; and therefore requested that his explanation may be considered favourably and the suspension may be revoked and he may be taken back for duty.

In criminal cases where a competent court has found a person guilty of the crime, as long as that judgment is not set aside in an appeal or revision, it has to be construed that the conviction is in force.

In his explanation, he has admitted that he has paid the fine amount of Rs.1000/- imposed by the Court in view of the fact that the first charge in the Case No.32/95 before the Second Additional Sessions Court, Erode has been proved. He has also stated that against the above judgment he has filed an appeal before the High Court of Madras in C.A.No.578/98 on 6.8.98 and that the same is pending. However, since he has remitted the fine amount pursuant to the judgment of the Sessions Court finding him guilty of the charge, it is proved that he has violated Rule 20(1) of Government Servants Conduct Rules 1973.

As he has remitted the fine amount of Rs.1000/- pursuant to the judgment rendered against him in the charge framed under Section 343 of Indian Penal Code and imposing a fine of Rs.1000/- for the proven charges, and in default to undergo rigorous imprisonment for 4 months, it is proved that Thiru K.Shanmugam, Depot Assistant (now under suspension) has violated Rule 20(1) of Tamil Nadu Government Servants Conduct Rules 1973. Hence, I, the Director of Employment and Training, hereby order removing Thiru K.Shanmugam, Depot Assistant (under suspension) from service for the proven charge.

If he desires to prefer an appeal against this order, it is informed that appeal has to be preferred to the Government within two months from the date of receipt of this order.

����������������������������������������������������������������������������������������� Director

����������������������������������������������������������������������������������������� Department of Employment and Training.

To

ThiruK.Shanmugam,

Depot Assistant (now under suspension),

Government Industrial Training Institute,

Coimbatore– through the Deputy Director/Principal.

Copy to the Deputy Director/Principal, Government I.T.I. Coimbatore (2 copies). It is requested to serve the first copy on the individual concerned and to send the second copy to the Director by registered post after obtaining full signature with date of the person on whom it is served.

Copies to I.T. Section; Stock File; Spare -2.

Endt. No.8702/Estt.3/94������������������������������������������������Office of the Deputy Director/

�������������������������������������������������������������������������������������������Principal, Government Industrial

������������������������������������������������������������������������������������������� Training Institute, Coimbatore.

������������������������������������������������������������������ �������������������������Dated: 13.11.01.

������������������������������������������������������������������������������������������ �- Forwarded --

������������������������������������������������������������������������������������������� Sd/ 13.11.01

������������������������������������������������������������������������������������������� Deputy Director/Principal,

������������������������������������������������������������������������������������������� Government Industrial Training

���������������������������������������������������������������� ���������������������������Institute, Coimbatore 641 029.

To

ThiruK.Shanmugam.

9. The learned counsel for the petitioner challenged the impugned order, on the ground that the impugned order cannot be sustained in law, as it is outcome of non-application of mind as no findings has been recorded as envisaged under Rule 17(c)(1)(i)of the Rules, which stipulates that before imposing punishment on the basis of conviction, the competent authority has to take into consideration the facts which lead to his conviction by the Court, and to hold that the facts so proved constitute moral turpitude.

10. The contention of the learned counsel for the petitioner therefore is, that the impugned order being in violation of the statutory provisions of law, cannot be sustained, having been passed in mechanical manner, on the basis of his conviction under Section 343 of IPC.

11. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court, in State of Madhya Pradesh v. Hazarilal(AIR 2008 SC 1300), laying down as under:-"6.Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus:

“19. Special procedure in certain cases.—Notwithstanding anything contained in Rule 14 to Rule 18—

(i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or

(ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or

(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:

Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this Rule.”

(7)By reason of the said provision, thus, “the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge”, but the same would not mean that irrespective of the nature of the case in which he was involved or the punishment which has been imposed upon him, an order of dismissal must be passed. Such a construction, in our opinion, is not warranted.

(8)An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence.

(12)At this stage we may also notice the application of the Doctrine by the United Kingdom House of Lords in Seal v. Chief Constable of South Wales Police, Huang v. Secy. of State for the Home Deptt., Tweed v. Parades Commission for Northern Ireland, Belfast City Council v. Behavin' Ltd. and R. (Countryside Alliance) v. Attorney General."

12. The learned counsel for the petitioner also challenged the imposition of punishment on the ground that admittedly, in view of the conviction of the petitioner under Section 343 of IPC, he has been imposed punishment of fine only, therefore, it is not a ground for removal from service.

13. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in PawanKumar v. State of Haryana, (1996) 4 SCC 17, holding therein as under:-

"14.Before concluding this judgment we hereby draw the attention of Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs 2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever."

14. On consideration, I find that the petitioner cannot draw any advantage from the judgment of the Hon’ble Supreme Court in the case of PawanKumar v. State of Haryana (supra), since the Hon’ble Supreme Court in the said case was dealing with the petty offence, carrying sentence of fine only. It was therefore, held that such offence do not constitute an offence involving moral turpitude. However, an offence under Section 343 IPC cannot be said to be petty offence carrying sentence of fine only, though petitioner was imposed sentence of fine.

15. Reading of the impugned order however shows that the competent authority has passed the impugned order mechanically by invoking Rule 20(1)�of Tamil Nadu Government Servants Conduct Rules 1973, merely on the basis of the conviction in a criminal case, without considering whether the facts leading to conviction constitute moral turpitude and that the facts leading to conviction involved moral turpitude to impose punishment of removal from service. The impugned order therefore, being against the law laid down by Hon'ble Supreme Court in State of Madhya Pradesh versus Hazarilal (supra), cannot be sustained.

16. The impugned order therefore, is set aside and the writ petition is allowed. However, this order shall not bar the respondents to take fresh decision for imposing punishment, in view of the conviction of the petitioner under Section 343 of IPC by taking into consideration facts leading to the conviction.

No costs.