PUSHPENDRA SINGH BHATI,J. - (1.) The petitioner's husband joined on the post of Constable vide order dated 30/04/1971. He was promoted as Head Constable on 26/03/1973. He suffered conviction under Section 304-B and 498- A of IPC vide order dated 15/02/2001. Upon such conviction, the respondents invoked powers under Rule 19(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and dismissed the petitioner's husband from service on account of his conviction under Sections 304-B and 498-A of IPC leading to sentence of 10 years rigorous imprisonment. The petitioner's husband preferred an appeal before Rajasthan High Court at Jodhpur, bearing SB Criminal Appeal No.117/2001 in which the High Court vide judgment dated 10/03/2004 set aside the conviction of the petitioner for the major offence under Section 304 of IPC and convicted the petitioner only for the offence under Section 498-A of IPC. The sentence of rigorous imprisonment for 10 years was reduced to the sentence already undergone. Since the petitioner's husband was acquitted under Section 304-B of IPC and his termination was by invoking the special powers under Rule 19 of the CCA Rules of 1958, therefore, the respondents were required to revisit the order of termination dated 10/10/2001. The petitioner has preferred this writ petition seeking quashing of the dismissal order dated 10/10/2001.
(2.) The respondents have filed reply and stated that since the petitioner's husband was convicted and sentenced for the offence under Sections 498-A and 304-B of IPC, therefore, he was rightly dismissed from service under Rule 19(2) of the CCA Rules of 1958. It was also stated in the reply that compassionate allowance under Rule 43 of the Rajasthan Civil Services (Pension) Rules was wholly at the discretion of the State Government and therefore, the petitioner's case was referred to the Financial Adviser, P.H.Q., Jaipur vide letter no.687 dated 27/09/2005.
(3.) Counsel for the petitioner Shri Ankit Agarwal has stated that invocation of Rule 19(2) of the CCA Rules of 1958 is an extra ordinary power and the same has to be exercised strictly in accordance with law. Counsel for the petitioner has stated that the departmental enquiry, if wholly dispensed with, then it is an exception to Article 14 which implies and comprehends natural justice principles which are violated if in normal circumstances there is an exclusion of the principles. Learned counsel for the petitioner has stated that Rule 19(2) of the CCA Rules of 1958 requires the disciplinary authority to record its satisfaction in writing that it was not reasonably attributable to follow the procedure prescribed in the rules whereas the respondents have failed to record any such reason in the order dated 10/10/2001. As per counsel for the petitioner, once the respondents had relied solely upon conviction of the petitioner's husband under Sections 304-B and 498-A of IPC and 10 years of rigorous imprisonment and the aggravated part of the conviction and sentence has already been set aside by this Court, therefore, the respondents are under legal obligation to revisit the impugned order in light of the legislative intention enshrined under Rule 19 of the CCA Rules of 1958. Counsel for the petitioner has relied upon the judgment in the case of Union of India v. Tulsi Ram Patel and others : 1985(3) SCC 398, the relevant portion of which, in the present facts and circumstances is quoted as follows :- "127.Not much remains to be said about clause (a) of the second proviso to Article 311(2). To recapitulate briefly, where a disciplinary authority comes to know that a government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case. This, however, has to be done by it ex parte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India and another, this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.";