Judgment:
V.K. Bali, J.
1. The only question that needs adjudication in the present writ filed by Kulwant Singh is as to whether on conviction of an employee in. some criminal matter, whatever be the conduct of the delinquent leading to his conviction, he has necessarily to be dismissed from service or that while, in-flirting punishment, the conduct leading to his conviction has to be taken into consideration. The question posed above stems from the facts which need a brief mention.
2. Petitioner was working as JBT teacher in Government Primary School, Dharmbad, District Gurdaspur. He was involved in a case under Sections 326/324/34 of the Indian Penal Code and was convicted by the Judicial Magistrate I Class, Batala, on November 30, 1976 to undergo rigorous imprisonment for a period of one year. Aggrieved, the petitioner filed an appeal against the order of his conviction which found no favour with the Appellate Court and, therefore, his appeal was dismissed on February 9, 1977. Still aggrieved, petitioner filed Criminal Revision before this Court which came up for final hearing on November 23, 1979. The order of conviction was upheld. However, the sentence awarded to the petitioner by the Courts below was reduced to the one the petitioner had already undergone. While disposing of the Criminal Revision No. 115 of 1977, the Hon'ble Judge observed as under:-
'The learned Senior Advocate for the petitioner apprehends that since Kulwant Singh is a teacher, employed in a Govt. Primary School, this conviction may entail problems for his in his service career. The nature of the conviction and especially when now it stands on a technical plane alone, after the compromise, does not involve any moral turpitude. Rural quarrels of varied dimensions are a common occurrence in the country side. This only reflects virility of the rural folk of this part of the country. Subject to the stringency of the service rules, if any, the conviction of the petitioner should normally not stand in his way to continue in service.'
Pursuant to conviction of the petitioner recorded by various Courts as also this Court, petitioner was issued a show cause notice, Annexure P-2. Nothing with regard to conduct of the petitioner leading to his conviction has been mentioned. Relevant portion of notice, Annexure P-2, is extracted below ;-
'I have gone through the case thoroughly and am of the opinion that conduct of Sh. Kulwant Singh is such for which he was convicted and for that reason it is not in the public interest to keep him in service.'
Petitioner replied to the show cause notice on November 23, 1975. However, the Punishing Authority, vide order dated February 3,1982, dismissed the petitioner from service. Relevant part of the order reads as follows:-
'On the basis of the finding recorded by the Court, Kulwant Singh was issued an office letter No. Staff-81 (m.4)14046 dated 3.11.1981 to show cause against his dismissal from the service. Reply dated 16.11.1981 of the aforesaid has been considered and found unsatisfactory. Thus, the allegations levelled against him are correct, he is not fit to be retained in Govt. service. Kulwant Singh, whose particulars are mentioned below, is hereby dismissed from service;'
It is relevant at this stage to mention that when the present petition was filed way back in 1982, operation of order under Annexure P-4A dated February 3, 1982 was stayed by this Court.
3. Mr. Grewal, learned Senior Advocate, appearing on behalf of the petitioner contends that the order, Annexure P4A dismissing the petitioner from service can not be sustained on the sole ground that while dismissing him from service his conduct leading to his conviction was not even remotely noticed by the concerned authorities. Conviction in a criminal case whatever be nature of offence and whatever be conduct, can not and does not necessarily result into dismissal of a government employee, contends the learned counsel. Before an order of dismissal from service is passed, authorities concerned are required to consider conduct of the delinquent leading to his conviction. For his aforestated contention, learned counsel relies upon Single Bench decision of this Court in Gurcharan Dass v. The Chairman, Posts & Telegraphs Board and Ors., 1983(1) SLR, 729. This judgment, in turn, is based upon another decision of this Court in Om Parkash v. The Director, Postal Services and Ors., AIR 1973 Punjab & Haryana, 1, wherein it has been held that 'an employee in government service can not be dismissed merely on the basis of his conviction and it is only his misconduct which might have led to the conviction that has to be taken notice of.' The Constitutional Bench of the Apex Court in Union of India v. Tulsi Ram Patel, 1985(2) SLR, 576, in paragraph 127 dealt with this precise question and held that:
'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 penalty and, if so, what that penalty should be. For the 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 Challapan'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.'
4. Mr. Grewal also contends that while disposing of Criminal Revision, referred to above, learned Judge, seized of the matter, had in no uncertain terms held that the conduct of the petitioner did not amount to moral turpitude and for that reason the petitioner did not deserve the maximum penalty of dismissal from service.
5. Mr. Masih, learned AAG, Punjab, on the other hand, contents that the Hon'ble Judge, while disposing of the revision petition, has also mentioned that the petitioner's right to stay in service is dependent upon stringency of service Rules and the relevant service rule talks of conduct leading to conviction and not the conduct that might amount to moral turpitude. Mr. Masih may be right and, in all probability, this Court would have remitted this case to the disciplinary authority to reconsider the matter but in view of the fact that the motion Bench, while admitting the petition, had stayed, operation of order, Annexure P-4A, as also that the petitioner who came to occupy the post of a teacher way back in 1963, either must have retired by now or may be at the verge of retirement as also for the reason that in any case it has already been held by this Court that conduct of the petitioner did not involve moral turpitude, it would not be in the fitness of things to remit this case to the authorities.
6. For the reasons mentioned above, this petition is allowed and order, Annexure; P-4A is quashed. Parties are, however, left to bear their own costs.