G. S. SINGHVI, J. - (1.) THE facts which are necessary for the disposal of this writ petition can briefly be stated here under :
(2.) THE petitioner was appointed as Constable in the service of the Police Department of the Government of Rajasthan in the year 1965. He continued to serve in that capacity till he was removed from service by order dated 12. 5. 76 of the Commandant, 4th Battalion, Rajasthan Armed Constabulary, Bikaner, under whom he was working at that time. THE petitioner was involved in a criminal case of private nature. He was treid, along with six other persons, for offence u/ss. 148 and 307 of the Indian Penal Code. THE learned Sessions Judge, Bikaner, convicted the petitioner u/ss. 147 and 323 of the Indian Penal Code, in Sessions Case No. 35/75 State of Rajasthan v. Shiv Pratap Singh. THE learned Sessions Judge sentenced the petitioner to imprisonment of one year and six months respectively on two counts and directed that both the sentences shall run concurrently. An appeal was filed by the petitioner against his conviction and in the S. B. Criminal Appeal. No. 226/76 decided on 02. 1. 81, the High Court partly allowed the appeal and the sentence was reduced to the period for which the petitioner has remained under custody. Immediately after his conviction by the learned Sessions Judge, Bikaner, vide his judgment dt. 3. 3. 76, the Commandant, 4th Battalion, Rajasthan Armed Constabulary, Bikaner, passed an order dated 12. 5. 76 and dismissed the petitioner from service on the basis of his conduct which led to his conviction by the learned Sessions Judge, Bikaner. The petitioner served a notice of demand for justice on the respondents against his removal from service. He has stated that no reply to the notice of demand for justice was received. In the writ petition, the petitioner has challenged the order of dismissal on the ground that no opportunity of hearing was given before the impugned order of punishment was passed. The other ground is that the conviction of the petitioner had not attained finality on the date of passing of the order dated 12. 5. 76 inasmuch as the appeal filed by him before the High Court was pending and the sentence awarded by the trial Court had been suspended by the High Court. Yet another argument advanced on behalf of the petitioner is that there has been no application of mind by the competent authority on the facts and circumstances of the criminal case in which the petitioner had been convicted. He was not found guilty of any offence invol-ving moral turpitude. He was merely found guilty of a fight. The conduct of the petitioner, with reference to the criminal case, had nothing to do with the discharge of his duties as a Constable in the Police Department. Finally it has been submitted that the order of dismissal was passed on May 12, 1976 but dismissal was given retrospective effect from 3. 3. 76 and the petitioner has been denied the benefit of the period between 4. 3. 76 to 11. 5. 76 In reply to the writ petition the respondents have admitted the facts regarding employment of the petitioner, his trial u/ss 307 and 148 of the Indian Penal Code and his conviction u/ss 147 and 323 of the Indian Penal Code. It has been then stated that when the judgment of the trial court came to the notice of the respondents, the order dated 12. 5. 76 was issued. This action has been taken under Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and it was not necessary to give any opportunity of hearing to the petitioner, before passing of such an order. Reference has been made to the Circular of the Government dated March 22, 1975, which contains guidelines for taking action in respect of Government servant, who is convicted by a Court of law on a criminal charge. The respondents have asserted that the judgments of the learned Sessions Judge was final and mere suspension of sentence during the pendency of appeal before the High Court was no ground Tor the Government to withhold its hands from taking discipli-nary action against the petitioner. The respondents have stated that the petitioner was employed in the Rajasthan Armed Constabulary, which is an important Wing of the Police Department. The duties of the personnel, serving in the Armed Constabulary is to maintain law and order and if a person belonging to this cadre is found guilty of a criminal offence, he cannot be retained in service. Retention of such person in service would affect the moral of the service. The petitioner had been found guilty by a competent court of law and, therefore, there was every justification of passing the impugned order dated 12. 5. 76. The petitioner had filed an appeal before the Dy. Inspector General of Police against his dismisssal from service. This appeal dismissed by the order dated 28. 12. 76. The petitioner has, however, suppressed this fact in the write petition. He did not file any review petition against the order passed by the appellate authority. The respondents have contested the grounds raised in the writ petition asserting that it was not obligatory for the respondents to have issued any notice of show cause to the net doner against the proposed penalty of dismissal from service. It was also not necessary for the respondent No. 2 to have given an opportunity of personal hearing to the Petitioner. The conviction of the petitioner was sufficient to enable the competent authority to pass the order of dismissal from service The authority conceded had taken into consideration the conduct of the petitioner which led to his conviction and, therefore, passed the order dated 12. 5. 76. The dismissal has been given retrospective effect because the petitioner had been convicted by the learned trial Court on 3. 3. 76. In fact, it was the duty of the petitioer to have brought the factum of his conviction to the notice of the authorities of the Department. The first contention urged by Mr. M. R. Singhvi, learned counsel for the petitioner is that the order of dismissal was passed by the competent authority without application of mind. The impugned order dated 12. 5 76 shows hat' the stock pharases mentioned in Article 31l (2) (a) of the Constitution of India and Rule 19 of 1958 Rules have been reproduced. In fact, the competent authority did not consider the facts and circumstances of the criminal case in which the petitioner had been convicted. If the competent authority had applied its mind, there could have been no justification for passing of the order of dismissal. The case in which the petitioner was challaned arose out of a private dispute between the petitioner and his close relatives. It was a case relating to personal animosity of the members of the petitioner's family and the opposite party and it had nothing to do with the discharge of the public duties of the petitioner. His record of service was absolutely clean. No adversity existed in his record.
(3.) MR N. S. Acharya, learned Additional Government Advocate, submitted that the" competent authority had passed the order dated 12. 5 76, after due application of mind. The conduct of the petitioner was taken into account, before passing the impugned order. The competent authority has come to the conclusion that retention of the petitioner in public service was underirable and therefore, the order of dismissal from service was passed. The petitioner is a member of the Police Force of the State and the duties of the Police Force is to maintain law and order, to prevent commission of offences to investigate and apprehend offenders and to produce evidence in the court of law for conviction of persons who are found guilty of offences under various statutes. If a member of such Force is himself found guilty of having committed an offence and is convicted by a Court of law, the only proper course for the Departmental Authorites is, to remove from service. This is not only proper but necessary and also in public interest. Article 311 of the Constitution gives two-fold protection to a person holding civil post. One is that he cannot be dismissed, removed or reduced in rank by any authority subordinate to the one which appointed him and the other that he is entitled to reasonable opportunity of hearing before any of these penalties are imposed. Proviso to Article 311 (2) of the Constitution of India carves out exceptions to the concept of reasonable opportunity of hearing. After the Constitution (42nd Amendment) Act, 1976 which came into force from 3. 1. 77, Article 311 reads as follows: "311 Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or State :- (l) No person who is a member of a civil service of the Union or an All-India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall no be necessary to give such person any opportunity of making representation on the penalty proposed: Provided further that this clause shall not apply- (a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction or a criminal charge; or (b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final. " Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1951 (hereinafter referred to as 'the Rules, 1958') specifies seven kind of penalties which can be imposed on a Government servant for good and sufficient reasons recorded in writing. First three penalties specified in Rule 14 are minor penalties whereas the other four are major penalties. The major penalty include dismissal, removal and reduction in rank. Before any major penalty can be imposed on a Government servant of Rajasthan, procedure prescribed under Rule 16 has to be followed. This procedure involves serving of a chargesheet containing specific charges and statement of allegations, opportunity of reply to the charge-sheet, appointment of Inquiry Officer, provision for departmental representative as well as assistance to the delinquent employee, recording of evidence by the Inquiry Officer, oral as well as documentary, opportunity of cross-examination to the rival parties, submission of the report by the Inquiry Officer, consideration thereof by the disciplinary authority and finally the order of punishment. Rule 17 contains procedure for imposition of minor penalties. Rule 18 makes a provision for joint departmental enquiry against more than one Government servant. Rule 19 carves out an exception to the normal procedure to be followed for imposing the major punishments specified in Rule 14. For the purpose of this case, provision of Rule 19 is quite relevant and, therefore, the same is reproduced below; "19. Special Procedure in certain cases-Notwithstanding anything contained in rules, 16,17 and 18, (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) 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; or (iii) where the Governor is satisfied that in the interest of the security of the State, |t is not expedient to follow such procedure, the disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary. " ;