Amrita Sinha JUDGMENT
Amrita Sinha, J.
1. The petitioner was serving in the Bharat Coking Coal Limited. A show cause notice was issued to him on 24th June, 2017 on the allegation that while he was working as Chief Manager (Mining)/Project Officer he was caught red handed by CBI while demanding and accepting illegal gratification. A case was registered against him by the CBI, Dhanbad. The petitioner was convicted in the said case.
2. In view of the conviction the petitioner was found guilty of committing serious misconduct under clauses 5.2 and 5.17 of the Conduct, Discipline and Appeal Rules, 1978 (as amended) of the Coal India Limited and was liable to be proceeded against under clause 34.1(i) of the said Rules. The petitioner was directed to show cause as to why appropriate penalty including dismissal from service should not be imposed upon him under Rule 27 of the said Rules.
3. The explanation submitted by the petitioner was not found satisfactory. By an order dated 6th November, 2017 the Chairman-cum-Managing Director, Coal India Limited being the disciplinary authority imposed the order of penalty of dismissal from service with immediate effect.
4. Being aggrieved by the order passed by the disciplinary authority the petitioner preferred an appeal before the appellate authority. By an order dated 27th August, 2018 the appellate authority upheld the order of penalty and dismissed the appeal preferred by the petitioner.
5. The petitioner is aggrieved by the same.
6. The petitioner submits that it was incumbent upon the employer to initiate a regular disciplinary proceeding prior to passing the impugned order of penalty. Dismissing the petitioner from service without affording him an opportunity of hearing is contrary to the principle of natural justice.
7. The petitioner argues that challenging the order passed by the CBI court he preferred appeal before the High Court and the High Court passed an order of suspension of sentence. As the sentence imposed upon the petitioner has been stayed accordingly the employer ought not to rely upon the said order and ought not to have taken any steps on the basis of the same.
8. The petitioner relies upon the judgment delivered by the Allahabad High Court, Lucknow Bench in the matter of Krishna Gopal Sharma -vs- State of Uttar Pradesh & Ors. reported in 2014(103) FLR 1143 (paragraphs 10, 11 and 12) wherein the court held that when the order of dismissal from service has been passed merely on the basis of conviction and not on the basis of conduct which laid to the conviction then once the order of conviction is stayed the basis of dismissal of the petitioner disappears. The court directed that the petitioner was liable to be reinstated in service.
9. The petitioner further relies upon an order passed by a learned Singh Judge of the Patna High Court on 27th January, 1995 in CWJC 63 of 1994 in Ram Nandan Prasad -vs- State of Bihar & Ors. reported in 1995(1) RLJR 399 wherein the court relying on a Government circular dated 23rd August, 1963 held that the authority was not justified in exercising the power to dismiss the petitioner from service on the ground of conviction in a criminal case.
10. The petitioner prays for setting aside the impugned order of dismissal and prays for reinstatement in service.
11. The learned advocate representing Coal India Limited relies upon the Conduct, Discipline and Appeal Rules, 1978 applicable to the Coal India Executives. Rule 34 lays down the special procedure to be adopted in disciplinary proceedings. Rule 34.1 says that notwithstanding anything done in Rules 29, 30 or 31 the disciplinary authority may impose any of the penalties specified in Rule 27 in any of the following circumstances:
(i) Where the employee has been convicted on a criminal charge or on the strength of facts and conclusions arrived at by a judicial trial.
12. The proviso to the said Rule mentions that the employee may be given an opportunity of making a representation to the penalty proposed to be imposed before any order is made under the aforesaid clause.
13. The petitioner was convicted by the CBI court under the provisions of the Prevention of Corruption Act, 1988. In accordance with the provision of the Rule the petitioner was afforded an opportunity to submit his explanation to the proposed penalty. His explanation not being found satisfactory, penalty was imposed. The respondents submit that the action taken by them was strictly in accordance with the Rules and there has been no violation of the principles of natural justice. The petitioner was afforded the opportunity to submit his explanation to the proposed sentence. The explanation of the petitioner was considered and it is only when the same was found unsatisfactory penalty was imposed upon him. The respondents submit that the order of stay of sentence does not have any bearing upon the final order of penalty.
14. The respondents rely upon the decision delivered by the Hon'ble Supreme Court in the matter of Deputy Director of Collegiate Education (Administration), Madras -vs- S. Nagoor Meera reported in MANU/SC/0256/1995 : (1995)3 SCC 377 (paragraphs 9 & 10) in their support.
15. The respondents further rely upon the judgment delivered by the Hon'ble Supreme Court in the matter of Oriental Bank of Commerce & Anr. -vs- R.K. Uppal reported in MANU/SC/0931/2011 : (2011)8 SCC 695 wherein the court held that in the absence of specific requirement in the service rules the petitioner cannot claim personal hearing as a matter of right at the appellate stage. The right of appeal is not an inherent right and the extent of power of an appellate forum and the mode and manner of its exercise can always be provided in the provision that create such a right. The service regulation governing the petitioner does not provide for an opportunity of hearing at the appellate stage.
16. I have heard the respective submissions made on behalf of both the parties.
17. It appears that the respondents have invoked the special procedure as laid down under Rule 34.1(i) to impose penalty upon the petitioner. Prior to imposition of penalty the petitioner was afforded opportunity to give his explanation with regard to the proposed punishment. The explanation provided by the petitioner was considered and the same not being found satisfactory, the order of dismissal was passed against him.
18. The appeal preferred by the petitioner was also duly considered by the appellate authority who confirmed the order passed by the disciplinary authority. The allegation of the petitioner that there has been violation of the principle of natural justice is accordingly not substantiated.
19. According to the petitioner the disciplinary authority ought to have taken into consideration the order of suspension of sentence passed by the High Court. As the sentence has been suspended accordingly the basis of the penalty order disappears.
20. In my opinion the aforesaid argument of the petitioner is fallacious. It is settled law that an order of suspension of sentence does not mean that the validity of the order has been wiped out. It does not mean that the same has lost its existence. It neither means that the parties will be relegated to their earlier position prior to passing of the order of suspension of sentence. It simply means that the same has been kept under suspension temporarily.
21. The Supreme Court in S. Nagoor Meera (supra) categorically held that if the accused government servant is acquitted on appeal or other proceeding the order passed against him can always be reviewed and if the government servant is reinstated he will be entitled to all the benefits to which he would have been entitled to had he continued in service. Continuing a person who has been convicted of a serious offence by a criminal court is not advisable.
22. The court succinctly laid down that when the employee was found guilty of corruption by a criminal court, then, until and unless the said conviction was set aside by the appellate or other higher court it may not be advisable to retain such person in service.
23. In the instant case the petitioner was convicted by the criminal court on charges of corruption. Until and unless the said conviction is quashed or set aside by a higher forum the action of the respondents in dismissing him from service cannot be faulted.
24. The judgment relied upon by the petitioner in the case of Ram Nandan Prasad (supra) was passed on the basis of a government circular dated 23rd August, 1963 wherein there was a provision which mentioned that since appeal is in continuation of the trial, the action taken by the employer should not be taken until the criminal appeal has been disposed of. In the instant case the service rules of the Company permitted the employer to invoke special provision in case an employee is convicted by a court of law. Accordingly the aforesaid decision will not be applicable for the purpose of deciding the instant case.
25. In Krishna Gopal Sharma (supra) the court was of the opinion that the reinstatement of the petitioner in service will be subject to the result of the criminal appeal pending before the court.
26. It is trite law that the quantum of punishment to be imposed upon an employee is the sole discretion of the employer. The employer has exercised discretion and imposed the punishment of dismissal from service.
27. There does not appear to be any infraction in the Rules relating to disciplinary proceedings and accordingly the court does not find any reason to interfere in the instant case.
28. In the event the order of conviction is set aside by the higher forum it will be open for the petitioner to seek review of the order of punishment imposed upon him.
29. W.P No. 20346 (W) of 2018 is disposed of.
30. Urgent photostat certified copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
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