M.M. Punchhi, J. - (1.) This second appeal is by a dismissed employee of the Railway Board against the concurrent judgments and decrees of the Courts below, whereby his suit for declaration against the order of dismissal failed.
(2.) The plaintiff was employed as a Rakshak in the Railway Protection Force and was posted in Nagaland. An order of dismissal was communicated to him on 19-12-1963 which he thought proper to challenge against the Union of India, respondent, in a Civil Court at Ferozepore in Punjab. On the pleadings and the documents brought on the record, facts have been highlighted. These are that the plaintiff - appellant was appointed in the Railway Protection Force as a Watchman in the Watch and Ward Department of the Eastern Railways on 15-5-1950 and stood transferred to the Special Emergency Force, Lumding in Nagaland, vide orders Exhibit D-4. On 29-11-1963 allegedly the plaintiff absented himself without permission from the place of his stay at Manipur Road Station. It was further alleged that under the influence of liquor he misbehaved with the local people of Manipur Road Station and was thus arrested by the Assam Police. His alleged misbehaviour and misdemeanour gave rise to disciplinary proceedings against the plaintiff - appellant, On 4-12-1963, a charge - sheet was served on him in which, inter alia, besides his absence from duty, misbehaviour under the influence of liquor with the local people and arrest by the Assam Police it was spelt that his misbehaviour and misdemeanour amounted to gross misconduct which had brought great disgrace and shame to the Battalion. That charge - sheet is Exhibit D-I. This solicited reply, Exhibit D - 2, from the plaintiff, in which he denied his absence from the place of stay without permission and about his misbehaviour under the influence of liquor with the local people. However, he admitted that there had been a small quarrel in which the police had intervened and the matters were set at rest. Thereupon, the authorities, in order to cross - check the version put forward by the plaintiff got effected a check from the Assam Police and were apprised that, vide order of the Criminal Court, dated 30th of Nov., 1963, the plaintiff along with two others was convicted for an offence under section 160 Indian Penal Code, and was sentenced to pay a fine of Rs. 15 in a summary trial. The enquiry in the case was not pursued any further in the presence of the order of conviction. On 19-12-63, the order of dismissal (which has inadvertently been left unexhibited on the record but with the consent of the counsel for the parties has to be referred so as to effectively pronounce judgment) was communicated, which is in the following terms:- "Whereas Shri Teja Singh, son of Shri Gurmukh Singh, Rakshak Railway Protection Force, I Spl. Battalion, Lumding, has been convicted on a criminal charge, under section 160 of the Indian Penal Code. And whereas it is considered that the conduct of the said Shri Teja Singh, son of Shri Gurmukh Singh, Rakshak Railway Protection Force, I Special Battalion, Lumding which, has led to his conviction is such as to render his further retention in the public service undesirable. Now, therefore, the undersigned hereby dismisses the said Shri Teja Singh, son of Shri Gurmukh Singh, Rakshak, Railway Protection Force, from service with effect from 19-12-1963. The period of suspension from 2-12-1963 to 19-12-1963 is treated as unqualifying period."
(3.) The learned counsel for the appellant, Shri K. L. Sachdeva, has contended that the conviction alone could not be the basis of an order of dismissal without a proper enquiry, after the issuance of a show - cause notice as contemplated under Art. 311(2) of the Constitution and under rule 44 of the Rules framed under the Railway Protection Force Act. At the same time, it is conceded that the Rules are silent on the situation as to what has to be done to an employee against whom an order of conviction has been passed by a Criminal Court. The plaintiff - appellant was non - suited by the Courts below on the basis of the proviso to Art. 311(2) of the Constitution which is in the following terms : "Provided that this clause shall not apply where the person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge."' The right of reasonable opportunity of showing-cause against the action proposed to be taken in regard to a civil servant of the State is only effective against actions proposed to be taken which are based upon considerations other than conduct which has led to his conviction on a criminal charge. Conviction per se cannot warrant dismissal but the conduct leading to conviction is the testing ground on which the punishing authority has to operate in order to impose a punishment of the choice given to it under the Article, whether it be of dismissal, removal or reduction in rank or even lesser sentences as prescribed in the relevant Rules. A Division Bench of this Court consisting of Gurdev Singh, J., and A. D. Koshal, J., (as his Lordship then was) in Rajinder Singh Vs. The Punjab State and another. 1969 SL.R. 754 , has taken the view that since three different types of punishments find mention in Art. 311(2) of the Constitution, it is obvious that if action is proposed to be taken against a civil servant consequent upon his conviction on a criminal charge, the authorities have to apply their mind to the facts of the case and examine the conduct of the public servant concerned, leading to his conviction. It was also held that for the purposes of aforesaid Article, there was no distinction between an offence involving moral turpitude and others not so involving To meet the ends of justice or to safeguard the interests of the Administration, any penalty could be inflicted on the delinquent and a lessor punishment, in the opinion of the punishing authority, could also be imposed. But, at the same time, it was held that a regular enquiry was not essential to be initiated nor a show - cause notice to be issued against the Government servant while the punishing authority was to consider the conduct of the Government servant leading to his conviction on a criminal charge. Contrary to this aspect of the case, the learned counsel for the appellant cited Narain Singh Vs. Union of India, I. Rs.R. (1972) 1 Delhi 115 , in which D. K. Kapur, J., while considering the aforesaid Division Bench judgment of this Court went on to observe that while the dismissing authority was to determine the choice of penalty on the Government servant, the requirement of show - cause notice was necessitated. It would, however, be seen that the learned Judge did not dwell any further on this aspect but considered the question as completely academic for the purposes of that case. Necessarily, the expression is an obiter dictum and in any case not a binding precedent for this Court to deviate from the view taken in Rajinder Singh's case supra).;