VYAS, J. - (1.) HEARD at admission stage.
(2.) THE instant petition has been filed by the petitioner with the prayer that the order dtd. 15. 10. 2005 (Annex. P/1) may kindly be quashed and set aside and the petitioner be reinstated in service. The brief facts of the case are that while the petitioner was posted as Forester in Range Garsana, a criminal case under Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 was registered against the petitioner. After trial, the petitioner was convicted under the provisions of Prevention of Corruption Act vide judgment dtd. 16. 9. 2000. The petitioner filed an appeal against the order of his conviction before this Court and his Court vide order dtd. 16. 9. 2000 suspended the sentence of the petitioner. After conviction of the petitioner the service of the petitioner have been terminated vide order dated 15. 10. 2005 (Annex. P/1 ). The main submission of the learned counsel for the petitioner is that since the conviction of the petitioner is not final as the sentences awarded to the petitioner have been suspended by this Court in criminal appeal, therefore, the order dtd. 15. 10. 2005 provisions of law. There is no dispute on the point that the case under the provisions of Prevention of Corruption Act was registered against the petitioner and after trial through judgment dtd. 16. 9. 2000, the petitioner was convicted under the provisions of the Prevention of Corruption Act and there cannot be any dispute on the point that if a person is convicted under the provisions of Prevention of Corruption Act, 1988, the conduct of that person would fall within the definition of moral turpitude. There is no dispute on the point that through order dtd. 26. 9. 2000, the sentence of the petitioner was suspended by this Court.
(3.) THAT for the purpose of present controversy Article 311 (2) (a) of the Constitution of India is relevant which reads as under:- "art. 311 (1 ). . . . . (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 not be necessary to give such person any opportunity of making representation on the penalty imposed. Provided further that this clause shall not apply- Where a person is dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge; or. . . " Thus, under Article 311 (2) (a) of the Constitution of India, the disciplinary authority is to regard the conviction of the concerned civil servant as sufficient proof of misconduct on his part. The authority is to decide whether conviction demands the imposition of any penalty and if so, what penalty. For this purpose, the authority has to take into consideration the judgment of the criminal Court, the entire conduct of the civil servant, the gravity of the offence, the impact of the offence on the administration, whether the offence was of a technical or trivial nature, and the extenuating circumstances if any. This the disciplinary authority has to do ex parte and without giving a hearing to the concerned civil Servant. Action under Article 311 (2) (a) of the Constitution of India is to be taken only when the conduct which has led to his conviction is such that the deserves any of the three major punishments mentioned in Article 311 (2) of the Constitution of India. The power has to be exercised "fairly, justly and reasonably". No hearing need be given while imposing the penalty after conviction on a criminal charge, but "the right to impose a penalty carries with it the duty to act justly. " ;