ISRANI, J. - (1.) IN this writ petition, it has been prayed that the order dated July 20, 1982, passed by the Collector (Land Record), Bharatpur, by which the petitioner was removed from service, may be quashed and set aside and he may be re-instated.
(2.) BRIEFLY, the petitioner was appointed on the post of Patwari in the year, 1961. While he had gone on leave at his home village Khatnawali, he was implicated in a criminal case on May 21, 1970 alongwith eleven other persons. The petitioner was convicted alongwith others by the trial Court under Sections 452, 323, 325/34 and 307, IPC and sentenced to four year's rigorous imprisonment. On appeal, the Sessions Judge, Bharatpur, partly allowed the same and upheld only conviction under Sections 325/34 and 452, IPC and reduced the sentence to two years' rigorous imprisonment. The petitioner and others preferred revision before the Hon'ble High Court, in which, the sentence was reduced from two years to already undergone. The petitioner remained in Jail for about two months. It was observed by the Hon'ble High Court that even as per findings of the Sessions Judge, it was a case of free fight, in which both the sides suffered injuries. It is further stated that cross cases were instituted by the parties. The petitioner was released on bail by the Police at the lime of his arrest and continued to be on bail during trial, pendency of appeal. He was also released on bail by the High Court, during the pendency of revision. It is submitted by Mr. Ashok Gaur, learned counsel, that the petitioner was never placed under suspension by any competent authority when the criminal case was registered against him. He, however, received on June 25, 1982, a notice dated June 22,1982 from the Collector (Land Records), Bharatpur,propos-ing removal of the petitioner from service, on the ground of his conviction under Sections 325/34 read with Section 452, IPC (Anx. 1 ). Reply to the notice was submitted vide Anx. 3. The petitioner was removed from service vide Anx. 4 dated July 20, 1982, by she order of the Collector. It is further submitted that the impugned order is void ab initio, being contrary to the principles of natural justice and Rule 19 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for brevity, the CCA Rules ). It is also submitted that the reply filed by the petitioner was not considered and no reason has been assigned by the Collector for forming opinion regarding removal of the petitioner from service. It is pointed out that it is a non-speaking order and there is no application of mind,before issuing the same. It is further pointed out that the Collector was required to consider the conduct of the petitioner, which has led to his conviction on criminal charge, which is condition precedent before invoking the authority under Rule 19 of the CCA Rules, for imposing a penalty. In addition to this, the Disciplinary Authority is required to consider the circumstances of the case and then pass an appropriate order, which has also not been done. It is also pointed out that the impugned order was passed almost forty four months, after the decision of the revision petition by the High Court. In fact, from the date of incident, more than 12 years had passed away, thereafter, all of a sudden, the petitioner was removed from service, which, in itself shows that the order is arbitrary, unreasonable and not in the public interest. The nature of the offence has been completely ignored, as no moral turpitude in the same was involved. It is submitted by Mr. B. K. Sharma, learned Additional Government Advocate, that the petitioner has been removed from service, since he was convicted in a criminal case and his conduct was considered, which resulted in his conviction. It is further submitted that the petitioner had wrongly informed the Authorities that there was stay order from the High Court. The impugned order was well within the jurisdiction of the Collector and, therefore, calls for no interference. The petitioner also did not file any appeal, as provided under the CCA Rules and has rushed to this Court, by way of writ petition. It was pointed out by the learned counsel for the petitioner that he could not have filed any appeal under the CCA Rules, since no enquiry was held under Rule 16/17 of the same. Therefore, only remedy was to file the writ petition. I have heard both the parties and gone through the documents on record. It may be pointed out that in a matter like one under consideration, it is important to see the genesis of the crime, out of which, the incident took place. In Anx. 3, which is reply filed by the petitioner to the show cause notice received from the Collector, it has been mentioned in para No. 6 that the incident arose when the petitioner went to answer the call of nature in the morning in the field, which belonged to other party. The incident was trivial, but became serious when the other party fired from his 12 bore gun. It is, therefore, evident that the petitioner had not gone anywhere with a view to commit a criminal offence. He had gone to answer the call of nature and dispute arose, since he used field belonging to the other party. . From a bare perusal of Anx. 4, it seems that the reply (Anx. 3) filed by the petitioner in answer to show cause notice (Anx. l) received by him, was not considered, because it is not even mentioned in Anx. 4 that the reply filed by the petitioner has been considered and rejected. It can, therefore, be said that this is a non-speaking order and has been passed, without application of mind, on the reply filed by the petitioner. This order seems to have been passed after more than 12 years of the incident, during which, the petitioner was never put under suspension. It may be pointed out that the petitioner has been convicted under Section 325, IPC, with the help of Sec. 34, which shows that the petitioner was not convicted for offence under Section 325, IPC, simplicitor. The incident took place away from the place of his employment, while he was on leave and had gone to his village. Therefore, it can be said that this quarrel had nothing to do with the employment of the petitioner as Government servant and, therefore, it cannot be termed to be a misconduct and such conduct could not have been subject-matter of a disciplinary enquiry/action against a Government servant. A reference may be made to Rule 4 of the Rajasthan Civil Services (Conduct) Rules, 1971 (for short, 'the conduct Rules, 1971' ). In sub-rule (1) of Rule 4, it is provided that any Government servant "who is convicted of an offence involving moral turpitude whether in the course of the discharge of his duties or not; (ii) behaves in public in a disorderly manner unbecoming on his position as a Government servant shall be liable to action. " Even if the matter is considered from the point of view of the Conduct Rules, 1971, it can be said that the conduct of the petitioner has not been such that it may call for any action under the provisions of the rule mentioned above. The contention of the learned Additional Government Advocate that the petitioner could have filed an appeal under Rule 23 of the CCA Rules, has also no force, as no enquiry was held against the petitioner under Rule 16 or 17 of the CCA Rules, nor any order was passed therein, so as to enable him to file any appeal under Rule 23 of the CCA Rules. As far as Rule 19 of the CCA Rules is concerned, it is laid down in Clause (i) that "where a penalty is imposed on a Government Servant on the ground of Conduct which has led to his conviction on a criminal charge". . . the Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Reference to the conduct of a Government servant under CCA Rules can only be made with regard to his conduct as is expected from him as laid down in the Conduct Rules, 1971. A Government servant cannot be expected to conduct him-self differently under the CCA Rules and under the conduct Rules, 1971. If the conduct of the Government servant is not against the criteria as laid down in the Conduct Rules, 1971, it cannot be said that the Government servant is liable to be dismissed from the service under Rule 19 of the CCA Rules. Merely because he has been convicted on a criminal charge, it does not involve automatic disqualification under Rule 19 of the CCA Rules. Rule 19 refers to two contingencies before a Government servant is dismissed. Firstly, he should have been convicted on a criminal charge and secondly he should have conducted himself in such a manner, which led to his conviction. The second ground, regarding conduct of the Government servant, which led to his conviction will mean such conduct, which was expected of him as per provisions of the Conduct Rules, 1971. Therefore, conviction of Government servant simply on the ground of conviction cannot be sustained, unless the second ground is also applicable to him. As stated above, the criminal charge and conviction of the petitioner was not regarding performance of his official duties, but the incident took place, while he was on leave and had gone to his village. The incident does not involve any moral turpitude. It came up on account of trivial matter. He has been convicted under Section 325 with the aid of Section 34, IPC. I am, therefore, of the considered opinion that the petitioner cannot be said to have conducted himself in such a manner as to invite penalty of dismissal from service under Rule 19 of the CCA Rules.
(3.) REFERENCE may be made to The Divisional Personnel Officer, Southern Railway and another v. T. R. Challeppan (1 ). This was a case, in which, an employee was convicted on a criminal charge. The appellant was arrested at Railway Station Plat-form for disorderly drunken and indecent behaviour and a criminal case under Section 51 (A) of the Kerala Police Act was registered against him. He was convicted, but was released on probation under Section 3 of the Probation of Offenders Act. Therefore,he was removed from service, in view of his misconduct, which led to the conviction of the respondent on a criminal charge. It was held by the Apex Court that when an employee is convicted on criminal charge, the penalty of removal from service imposed by the Disciplinary Authority without applying its mind to the facts and circumstances, cannot be upheld. In the matter under consideration also, the order Anx. 4 will show that the disciplinary Authority did not apply its mind on the facts & circumstances, which led to the conviction of the petitioner. The conduct of the petitioner when considered under Rule 4 of the Conduct Rules, 1971, can be held to be improper and unbecoming conduct amongst other things when he is convicted of an offence involving moral turpitude whether in the course of discharge of his duties or otherwise. When a person is charged to have committed offence involving "moral turpitude" it may mean that such conduct is arising out of an act, which is dishonest, immoral or unethical. From the facts of the incident described above, it cannot be said that his conduct arose out of any act, which can be termed as dishonest, immoral or unethical. In Thakorbhai Bhagabhai vs. D. D. O. , Surat and another (2), the petitioner was suspended on account of an offence said to have been committed under Section 323, IPC. The suspension order was quashed and set aside on the ground that the alleged offence did not involve any moral turpitude in the conduct of the petitioner. In the matter under consideration also, I am of the considered opinion that the conduct of the petitioner does not involve any moral turpitude. ;