- (1.) This petition under Art. 226 of the Constitution is directed against the order of the Assistant Engineer, (Phones), Allahabad, dated Aug. 23,; 1978, terminating the petitioner's services under R. 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, and also against the order of the appellate authority dated 6-12-1978, dismissing the petitioner's appeal against the order of termination.
(2.) Dost Mohammad, the petitioner, was employed as peon in the Posts and Telegraph Department and posted in the office of the Assistant Engineer, Phones, at Allahabad. The petitioner's real brother, Mukhtar Ahmad, was also employed as Extra- Departmental Agent under the Posts and Telegraph Department. On 18-4-1974 an incident of marpit took place in the petitioner's village as a result of which the petitioner along with his brother Mukhtar Ahmad and his father Badruddin was convicted for an offence under S. 323, IPC. An appeal against trial court's order was partly allowed and the petitioner's conviction was upheld but the sentence was modified by the District and Sessions Judge. The petitioner, his brother Mukhtar Ahmad and Badruddin, petitioner's father, all were directed to undergo imprisonment for one month, further each of them was directed to pay a fine of Rs. 100/-. Thereafter, the Assistant Engineer, Phones, removed the petitioner from service under R. 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, by his order dated Aug. 23, 1978. The petitioner preferred an appeal against that order but that was rejected by the Divisional Engineer, Telephones, by his order dated 6-12-1978. Aggrieved, the petitioner has challenged the aforesaid two orders. 2A. Learned counsel for the petitioner urged that the petitioner's conduct which led to his conviction was not related to his service and he could not be departmentally punished for that conduct and as such he could not be removed from service on account of his conviction. The competent authority did not afford any opportunity of hearing to the petitioner before removing him from service in a mechanical manner without considering the relevant matters. The impugned order of removal has been passed arbitrarily and unreasonably for a very trivial matter which is unconnected with the petitioner's duties. The respondent-authorities discriminated the petitioner in removing him from service while on the same facts and circumstances they reinstated the, petitioner's brother and allowed him to continue in service. Learned counsel for the respondent-authorities urged that R. 19(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, does not contemplate any enquiry or giving of an opportunity to the delinquent employee. Once a Government servant is convicted for an offence by a criminal court it is open to the competent authority to remove him from service without giving him any opportunity. The principles of natural justice are not attracted and the petitioner was not entitled to any opportunity of hearing before the issue of impugned order. He further urged that R. 19 of the Rules was applicable to the petitioner as he was a Government servant while the said rule was not applicable to his brother as he was an extra-Departmental Agent.
(3.) The petitioner was a Government servant and he was entitled to the constitutional protection of Art. 311. Rr. 14 to 18 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, prescribe procedure for impsoing penalties on a Government servant which provide for the issue of a charge-sheet and giving of an opportunity to the delinquent employee to submit his explanation and to cross-examine witnesses and to produce witnesses in his defence. These Rules are designed to afford reasonable opportunity of defence to the Government servant as contemplated by Article 311 of the Constitution. Rule 19, however, incorporates the principle contained in proviso (a) to Art. 311(2) of the Constitution, which lays down that Art. 311 (2) shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to the conviction on a criminal charge. Proviso (a) to Art. 311(2) of the Constitution does not contemplate holding of an enquiry and giving of opportunity as contemplated by cl. (2) of the Article before imposition of a major penalty. Rule 19 enunciates the same principle and the same considerations would be applicable to R. 19 also. It is thus clear that if a delinquent Government servant is convicted of a criminal offence the competent authority is entified to impose any of the penalties contemplated under the rules without holding any departmental enquiry as required by Rr. 14 to 18.;