1. By this OA, the applicant is challenging the order of his dismissal from Railway service dated 12.6.1998 issued by the Ad-hoc Disciplinary Authority, And Deputy Principal, Primary School, Eastern Railway, Jamalpur (respondent No. 4).
2. The last post held by the applicant before his dismissal was that of Technician Fitting II, Eastern Railway, Jamalpur Workshop. He was convicted along with another accused on 3.9.1996 in a criminal case filed against them in the Court of Sub-Divisional Judicial Magistrate, Munger under Section 304 (A) IPC, and they were sentenced to undergo two years or rigorous imprisonment and to pay a fine of Rs. 2500/- to the family of the person whose death was caused by their negligence.
They filed an appeal to the Sessions Court, and the appeal was dismissed on 16.8.1997 by the 3rd Addl. Sessions Judge to whom it was assigned. They filed a Criminal Revision to the Patna High Court, and on 14.1.1998 the High Court granted bail to them on a bail bond of Rs. 5000/- with two sureties of the like amount each to the satisfaction of the Trial Court, and the High Court ordered that "this application shall be heard only on the question of sentence." From the document furnished along with the OA by him, it would appear that the applicant approached the Chief Factory Manager, Eastern Railway, Eastern Railway Jamalpur with his application dated 3.3.1998 to allow him to resume duty. Instead of allowing him to resume duty, the authority issued show cause notice to him on 21.4.1998 as to why he should not be dismissed from service under Rule 14 (1) of the Indian Railway (Discipline and Appeal) Rules, 1968. Then, the impugned order of his dismissal from service was issued to him on 12.6.1998. The dismissal was with effect from the following date i.e. 13.6.1998.
2. Shri Anil Kumar, the learned counsel for the applicant cited two rulings of the Hon'ble Supreme Court in Shankar Dass v. Union of India, AIR 1985 SC 772, and Tulsiram Patel and Ors. v. Union of India, AIR 1985 SC 1416. Thee ruling in Shankar Das v. Union of India was delivered by the Supreme Court on 12.3.1985, and the land-mark judgment in Tulsiram Patel and Ors. was delivered on 11.7.1985. The learned counsel relied on the observation of the Supreme Court in Shankar Dass that the power of dismissal of a civil servant "on the ground of conduct which has led to his conviction on criminal charge..... like every other power has to be exercised fairly, justly and reasonably," and then, he contended that every conviction does not constitute a sufficient cause for dismissal.
3. Shankar Dass was a cash clerk in the Delhi Milk Scheme, and following his conviction under Section 409 IPC for breach of trust in respect of Rs. 500/-, he was summarily dismissed from service on 14.6.1964. Before the Trial Court, he pleaded his guilt to the charge after repaying the amount. The learned Magistrate 1st Class, Delhi convicted him, but taking into consideration the adverse circumstances under which he was unable to pay the money before his prosecution, concluded that the middle aged accused without any previous conviction should be dealt with under the Probation of Offenders Act, 1958.
4. Now Article 311 of the Constitution of India prohibits, under Clause (2), the dismissal or removal or reduction in rank of Government Servants, but there are three exceptions where the clause shall not apply, which are: "(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an 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." The present matter falls within Clause (a), as it is case of dismissal of the applicant for his conduct leading to his conviction by a Court of law. In Tulsiram Patel, a five Judge Constitution Bench of the Hon'ble Supreme Court by majority ruled that: "61. The language of the second proviso is plain and unambiguous.
The keywords in the second proviso are "this clause shall not apply." By "this clause" is meant Clause (2). As Clause (2) requires any inquiry to be held against a Government servant the only meaning attributable to these words is that this inquiry snail not be held. There is no scope for any ambiguity in these words and there is no reason to give them any meaning different from the plain and ordinary meaning which they bear. The resultant effect of these words is that when a situation envisaged in any of the three clauses of the proviso arises and that clause becomes applicable, the safeguard provided to a Government servant by Clause (2) is taken away. As pointed out earlier, this provision is as much in public interest and for public good and a matter of public policy as the pleasure doctrine and the safeguards with respect to security of tenure contained in Clauses (1) and (2) of Articles 311." 5. In para 70 of the Judgment, the Hon'ble Supreme Court went on to observe as follows: "P. 70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a Government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311 (2) or from giving any kind of opportunity to the concerned Government servant.
There is thus no scope for introducing into the second proviso some kind of inquiry or opportunity by a process of inference or implication. The maxim "expressum facit cessare tacitum" ("When there is express mention of certain things, then anything not mentioned is excluded") applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore (1969) 3 SCR 112 = (AIR 1969 SC 453 at p. 459), this well known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that Clause (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that Clause (2) contains and there can be no scope for once again introducing the opportunities provided by Clause (2) or any one of them into the second proviso." 6. There can be no doubt that holding a departmental inquiry against a convicted government servant or issuing show cause notice to him, and waiting for his reply are prohibited by the proviso (a) to Clause (2) of Article 311, and that prohibition being mandatory, there is no need of a departmental inquiry or issue of show cause notice before dismissal of a convicted government servant, even though there may be a provision to that effect in the service rules, as we find in the 1st proviso to Rule 19 of the CCS (CCA) Rules.
7. The applicant, in the present case, was convicted under Section 304 (A) IPC, and the ruling of the Supreme Court in Tulsiram Patel and Ors.
squarely applies to him. His learned counsel contended that the applicant's revision application against his conviction on before the Patna High Court awaiting decision, and that being so, the matter is sub-judice, and the dismissal order cannot stand. We pointed out to him that the conviction has not been stayed by the High Court, and unless it is reversed finally, the applicant is still a convict subject to dismissal without departmental inquiry or show cause notice to him.
8. The learned counsel next contended that the impugned order of dismissal cannot stand, once show cause notice was issued to the applicant as to why he should not be dismissed from service. Here also, we pointed out to the learned counsel that show cause notice was a redundancy in view of the law laid down by the Supreme Court in Tulsiram Paul, and the redundant show cause notice does not make any difference whatsoever to the order of the applicant's dismissal from service.
9. The learned counsel next contended that the conviction of the applicant under Section 304 (A) IPC was on the charge of his negligence leading to the unfortunate death of a person who went into his field which he fenced with a live wire, and that being so, he should be entitled to the same relief that was granted to Shankar Dass by the Supreme Court. Here again, the contention of the learned counsel cannot stand at all. There can be no comparison whatsoever between the conviction of Shankar Dass under Section 409 IPC, and his being dealt with under Section 12 of the Probation of Offenders Act, 1958, and the conviction of the applicant under Section 304(A) IPC, and sentence to undergo two years rigorous imprisonment. In fact, while giving relief to Shankar Dass, the Supreme Court observed that : "P. 4. Section 12 of the Probation of Offenders Act must be placed out of way first. It provides that notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 2 or 4 "shall not suffer disqualification" attaching to a conviction for an offence under such law. The order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of Section 12. There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications. For example, Chapter III of the Representation of the Peoples Act, 1951 entitled "disqualifications for membership of Parliament and State Legislatures" and Chapter IV entitled "Disqualifications for Voting" contain provisions which disqualify persons convicted of certain charges from being members of legislatures or from voting at elections to legislatures. That is the sense in which the word "disqualification" is used in Section 12 of the Probation of Offenders Act." As we have said, it was in consideration of the misfortune that dogged Shankar Dass which made him unable to pay the amount that the Supreme Court gave him relief and not on legal ground.
10. Then, the learned counsel cited the judgment of the Supreme Court in Jaswant Singh v. State of Punjab and Ors., (1991) 15 ATC 729, where the Supreme Court quashed and set aside the order of dismissal dated 7.4.1981 of the appellant Jaswant Singh without holding departmental inquiry. Jaswant Singh was a Head Constable. He had been dismissed earlier on 12.10.1979 after a departmental inquiry, and his appeal against the order of his dismissal was dismissed by the appellate authority. But the Inspector General of Police, Punjab allowed his revision application on 13.10.1980, and remanded the matter to the disciplinary authority to re-consider the inquiry report, and pass order afresh. He was reinstated in service, and immediately placed under suspension. He was issued notice dated 4.4.1981 to show within 10 days as to why he should not be dismissed from service. But before the period of 10 days was over, the disciplinary authority passed an order of his dismissal from service on 7.4.1981 without holding departmental inquiry. In the order of dismissal, it was mentioned that the disciplinary authority was satisfied that it was not reasonably practicable to hold departmental inquiry against him because of his conduct. But the Supreme Court held that the order of dismissal could not be sustained in absence of any independent material justifying the reliance on Clause (b) of the second proviso to Article 311 (2).
11. The learned counsel read out to us some paragraphs of the judgment of the Supreme Court in Tulsiram Patel case, but to our query as to whether the order of dismissal in the case of Jaswant Singh was made on the basis of his conduct leading to his conviction on a criminal charge, the learned counsel conceded that it was not so. Then, the case of Jaswant Singh does not apply to the present matter at all, where the impugned dismissal without inquiry was because of conviction.
12. The learned counsel for the applicant came up with an astounding statement that there was no provision for appeal under the Indian Railway (Discipline and Appeal) Rules. He even read out Rule 16 of the Rules which provides for appeal against the orders of punishment, and on our query, he read out Rule 6 where various degrees of punishments including the extreme penalty of dismissal are listed. All these penalties being appealable, the learned counsel fairly conceded that the applicant would have been entitled to prefer an appeal against the order of his dismissal, which he has not done.
13. Coming back to the arguments of the learned counsel that the applicant was likely to succeed in his revision application before the Patna High Court, we must observe, as we did at the hearing, that we are not here sitting in judgment over the conviction of the applicant under Section 304 IPC, and in fact, we are bound to, and we do respect the judgment of the Trial Court in the criminal case, which has not yet been reversed.
14. The applicant has no case at all for grant of relief by the Tribunal against the impugned order of dismissal. His application has to fail. Before we conclude, we must observe that the land-mark judgment of the Constitution Bench of the Supreme Court which has come to be popularly known as the case of Tulsiram Patel, was, in fact, dealing with six other matters, besides the S.L.P. filed by the Union of India against the judgment of the Lower Court in Tulsiram Patel. As we have said, the Bench was made up of five Hon'ble Judges, and the judgment was delivered by the then Hon'ble Mr. Justice D.P. Madon for himself and for Hon'ble Mr. Justice Y.V. Chandrachud, C.J., the Hon'ble Mr. V.D. Tulzapurkar and the Hon'ble Mr. R.S. Pathak, JJ, as they were then. The then Hon'ble Mr. M.P. Thakkar, J. delivered as desenting judgment. Several previous decisions of the Supreme Court were referred to in the judgment, one such previous judgment being D.P. O. Southern Railway v. T.R. Challappan, which had been decided by a three Judge Bench of the Supreme Court some 10 years earlier. The Supreme Court has clearly laid down the law on several aspects of the provisions of Articles 309, 310 and 311. As we have already said, the present application has no merit at all in view of the law so laid down.
15. In the light of the discussions made hereinabove, this application is dismissed. There shall be no order as to costs.