D.K.Seth - (1.) THE petitioner was removed from his service by an order dated 18.11.1985, filed as Annexure 3 to the writ petition, under Rule 37A of the Central Industrial Security Force Rules, 1969. Shri H. N. Sharma, learned counsel for the petitioner assails the same on the ground that the order of dismissal can only be passed only if there is punishment of Rigorous Imprisonment (hereinafter referred to as R.l.) upon conviction. But in the present case, there having been only a fine of Rs. 125 on the ground of being convicted under Section 323 of the Indian Penal Code. THEre is no scope for inflicting grave punishment of removal from service. According to him this was a simple quarrel between the relatives which was wholly unconnected with the employment of the petitioner and that too had taken place before the petitioner was employed though, however, the conviction resulted after he was inducted in the employment. His second argument was, that if the petitioner does not come within second part of Rule 37 in that event question of punishment is to be considered as might deemed fit by the authorities on the basis of graveness of the conduct leading to conviction on Criminal charge. Very fairly, however, he has not addressed the court on the question of charges proved and the other relevant matter. He has confined his submission only to these questions.
(2.) IN order to appreciate the position it is necessary to refer to Rule 37, which is being reproduced below : "37. Special Procedure in certain cases-Notwithstanding anything contained in Rule 34, Rule 35 or Rule 36 where a penalty is imposed on member of the force- (a) on the ground of conduct which had led to his conviction on a criminal charge; or (b) where the disciplinary authority is satisfied for reasons to be recorded in writing, that it is not reasonably practicable to follow the procedure prescribed in the said rules. The disciplinary authority may consider the circumstances of the case and pass such orders thereon as it deems fit. A member of the force who has been convicted to rigorous imprisonment on a criminal charge shall be dismissed from service. IN such case no evidence need be given to prove the charge. Only a notice shall be given to the party charged proposing the punishment of dismissal for his having been convicted to rigorous Imprisonment and asking him to explain as to why the proposed punishment of dismissal should not be imposed." A plain reading of Rule 37 shows that the proceeding as provided in Rules 34, 35 and 36 have been dispensed with in the cases specified in Rule 37. Clause (a) thereof provides that the procedure provided in Rules 34, 35 and 36 need not to be followed, if the conduct lends to conviction on the criminal charge, then the disciplinary authority may consider the circumstances of the case and pass such order thereon, as it deems fit. The second part deals with the cases where a person suffers R.I. of conviction on criminal charge. The result thereof has been laid down to be dismissal without any alternative and the procedure for dismissal in such case could be followed through simply by issuing notice proposing punishment. IN the present case the second part does not apply because of the facts of this case in hand. A plain reading of the said rule indicate that two circumstances were envisaged while engrafting the said rule In order to secure the protection of a person concerned making distinction between conviction and conviction with R. I. In the case of R. I. only punishment provided is that of dismissal and that too simply by a notice proposing the punishment of dismissal. On the other hand distinction has been made in respect of conviction where no R. I. has been awarded. Though the first part governs whole of the rule but the same is qualified to the extent by the second part only In respect of punishment of R. I. The second part is an exception carved out of the first part dealing with R.I. Therefore, when no punishment of R.I. is awarded the first portion become operative. The second part operates in two different circumstances as indicated above. In respect of the cases governed by the first part, punishment has not been specified. The punishment that has been stipulated is coined with the expression "pass such orders thereon, as it deems fit". Then again the expression "deems fit" is dependent on the consideration of the disciplinary authority, having regard to the circumstances of the case, whether or not the order of removal or any other punishment would be inflicted. That has to be decided by the disciplinary authority upon consideration of circumstances of the case and then to satisfy itself about fitness of punishment to be imposed. The punishment may be, any one of the punishment, as has been provided, in the relevant rule. The Impugned order only records as to the sufficiency so as to inflict punishment. Nothing has been indicated in the order itself to show as to why the authority had considered that the order of removal is the only punishment that could be imposed, in the circumstances of the case. There is nothing to indicate as to how the mind of the disciplinary authority had acted. A plain reading of the said order does not reveal as to how that part of Rule 37 by which the disciplinary authority is required to consider the circumstances and decide the quantum of punishment on the phrase as it deemed fit, has been decided.
(3.) IN that view of the matter the impugned order dated 18.11.1985 is liable to be quashed and is accordingly quashed only to the extent of imposition of punishment by the said order dated 18.11.1985. A writ of certiorari do issue accordingly. The authority shall, however, consider the question of imposition of punishment on the basis of the facts and circumstances of the case having regard to the expression "may consider the circumstances of the case and pass such order thereon as it may deem fit "in accordance with law, indicating the reasons supporting imposition of such penalty and such consideration should be affected within a period of four months from the date a certified copy of this order is produced before the concerned respondent. While considering the question the disciplinary authority shall not be influenced by any observation made with regard to the merit of the case in this order and shall be free to pass orders according to its own wisdom strictly in accordance with law. The petitioner's services shall be subject to the result of such decision that might be taken afresh. The writ petition thus stands allowed. There will, however, be no order as to costs. Let a copy of this order be given to the learned counsel for the petitioner on payment of usual charges within a week.;