- (1.) D. K. Seth, J. By an order dated 31-12-1987 the petitioner's services were ter minated on the ground that he was con victed under Section 279 read with Section 337 of the Indian Penal Code and had under gone punishment of Rigorous Imprison ment for a period of ten months together with fine of rupees one thousand and his appeal against the conviction stood dis missed. This order was challenged in Writ Petition No. 2269 of 1988 before this Court. By an order dated 11-1-19% this Court was pleased to observe that the punishment ap pears to be disproportionate and, therefore, liberty was granted to the petitioner to make a representation for reduction of punish ment and the respondent No. 3 was directed to consider the same objectively and dispose of the same by a reasoned order. A copy of the said order dated 11-1-1996 is Annexure 8 to the writ petition. By an order dated 29-1-1996 the representation of the petitioner was considered and disposed of in terms of thte said order dated 11-1- 1996 by reducing the punishment to the extent that the petitioner shall not insist for any pay ment during the period when he remained absent and shall execute an undertaking to that extent and join his services. Civil Misc. Writ Petition No. 2269 of 1988 was disposed of by this Court by order dated 5-2- 1996 while granting liberty to the petitioner to challenge the order dated 29-1-1996 by filing another writ petition setting-forth ap propriate grounds. By reason of such liberty the present writ petition has been filed.
(2.) SRI M. D. Mishra, learned counsel for the petitioner challenged the said order dated 29-1-1996 on the ground that once the petitioner was punished on account of mis conduct earlier and that punishment was proportionate punishment, subsequently the order of dismissal is altogether dis proportionate, in the facts and circumstan ces of the case, particularly when the convic tion of the petitioner was not on account of any moral turpitude. He contends that the respondents having once considered earlier punishment to be a proportionate punish ment on account of misconduct it can not deviate from the same at subsequent stage and pass more severe punishment and in such severe punishment would be al together disproportionate on the own showing of the respondents itself on earlier occasions. He further contends that the order of dismissal was issued without giving any opportunity to the petitioner, as is re quired under Rule 36 of U. P. Zila Parishad Service Rules, 1970. Therefore, the order isbad. In view of the order passed in the earlier writ petition namely the order dated 11-1-1996 and 5-2- 1996 it is no more open 1 to Sri Mishra to agitate the order of ter mination on the ground that no opportunity was given to him, inasmuch as challenge from the said order stands concluded by the said order whereby nothing was said about the validity or invalidity of the order of ter mination. The only liberty was granted to make a representation for reduction of punishment and after having found that the punishment was disproportionate by reason of the liberty granted by order dated 5-2-1996 the scope of the present writ petition has been confined to the extent of the liberty granted by order dated 6-2-1996 namely to the extent as to whether the punishment sought to be imposed by order dated 29- 1-1996 is still dis-proportionate. Sri Mishra could not place his case at any stage higher than that. Sri N. S. Chaudhary, learned counsel for the respondents on other hand contends that Rule 36 does not postulate of giving any opportunity if the termination is effected in terms of sub-rule (2) prescribing exceptions to the grant of opportunity as contemplated in Rule 36.
(3.) RULE 36 of the said rule provides that no order of dismissal, removal or reduction in rank should be passed against an employee without giving him an oppor tunity as provided in RULE 36 namely that of inquiry. But RULE 36 begins with the excep tion other than the order based on the fact which have led to his conviction on criminal charge. Therefore, RULE 36 and sub-rule (1) itself postulates exception which is further specified in sub-rule (2) to the extent that sub rule (1) shall not apply in the cases mentioned in clauses (a), (b) and (c), Clause (a) prescribes that in case of order of ter mination passed where a person is dis missed or removed or reduced in rank on the ground of conduct which has led to his conviction of criminal charge. "sub-rule (1) shall not apply. Therefore the said question is no more open to the petitioner to agitate at this stage. The expression used is only to the extent leading to conviction on criminal charge. Admittedly, in the present case, charge is criminal one under Sections 279 and 337 of the Indian Penal Code and upon such charge there was conviction on ac count of misconduct of the petitioner which fact is not disputed by the counsel for the petitioner. The said conviction or criminal charge is not qualified by any expression any-where else. My notice has not been drawn to any provision to the extent that the said conviction on criminal charge is qualified in any manner. Therefore, the ar gument that unless conviction is on criminal charge amounting to moral turpitude the provisions shall be attracted does not seem to be reasonable or rational. Nowhere in the rule it has been provided that such criminal charge should amount to moral turpitude. Therefore, I am unable, with great, to agree with the erudite contention raised by Sri Mishra. Since the law prescribes that the order of punishment can be passed on a conduct leading to conviction on criminal charge, therefore, the authority to punish, cannot be disputed. It is for the respondent concerned to consider which punishment is proportionate or dis-proportionate. The punishment that has been mentioned in sub rule (2) is that of dismissal, removal or reduction in rank. Now in the light of the order passed by this Court the authority has considered the question and reduced the punishment from that of dismissal only to denial of payment to the petitioner, during which period he was not in service. It was done on sympathetic ground. Then again the order does not specify that he was reduced in rank. Therefore, it can not be said that the punishment is dis-propor tionate simply because he was asked not to insist for payment of salary during the period he did not work and remained ab sent. By reason of the said order the petitioner would be entitled to all retiral benefit since during the said period the petitioner had retired. The petitioner would not be entitled to any retirement benefit had the order of dismissal stood confirmed. Therefore, the punishment to the extent non-payment of salary for a particular period during which he did not work, does not appear to be dis-proportionate, in the facts and circumstances or the case. In that view of the matter, I am not inclined to interfere with the order im pugned in the present writ petition. The writ petition, therefore, fails and is accordingly dismissed. There will however, be no order as to costs.;