Judgment:
Chauhan, J.
1. The instant writ petition has been filed for quashing the orders dated 23,10.1990, 20.4.1998 (Annex.6) and 30.7.1998 by which the petitioner has been removed from service.
2. The facts and circumstances giving rise to this case are that petitioner was employed as a Constable in Railway Protection Force, Northern Railway and was posted at Jodhpur. He was tried in a criminal case and stood convicted for the offences punishable under Section 379/511 read with Section 34 of the Indian Penal Code vide judgment and order dated 4,11.1998 (Annx.l). However, petitioner was given the benefit of the provisions of the Probation of Offenders Act, 1958 (hereinafter called 'the Act, 1958') and an observation was made that petitioner's service career would not be adversely affected by the said conviction. Simultaneously the Department had also initiated the disciplinary proceedings against the petitioner under the provisions of the Railway Protection Force Act, 1979 (for short, 'the Act, 1979') and the Railway Protection Force Rules, 1987 (for short, 'Rules, 1987'). After completion of the enquiry, report was submitted by the Enquiry Officer to the Disciplinary Authority in 1982. Inspite of conclusion of the inquiry, no final orders were passed because of pendency of the criminal case. After conclusion of the criminal trial, a show cause notice dated 28.9.1990 was served upon the petitioner, alongwith a copy of the inquiry report, under Rule 44 of the Rules, 1987 as to why he should not be dismissed from service for the reason that charge of committing theft stood proved against him in the inquiry. Instead of filing reply to the said show cause, petitioner filed S.B.C.W.P.NO.4457/1990 and this Court, vide order dated 6.11.90, passed an interim order in his favour. However, it appears that petitioner's services stood terminated vide order dated 23.10.1990, i.e. prior to the date of passing the said interim order by this court. Petitioner withdrew the writ petition on 26.9.1997 and submitted the reply to the said show cause notice dated 28.9.1990. The Disciplinary Authority passed the order dated 20.4.1998 (Annex.4) that as petitioner had already been dismissed from service on 23.10.1990, no further order was required. Being aggrieved and dissatisfied, petitioner preferred an appeal under Section 9(2) of the Act, 1958, which has been dismissed vide order dated 30.7.1998. Being aggrieved and dissatisfied, petitioner preferred a writ petition before me Jaipur Bench of this Court, which was dismissed as withdrawn, vide order dated 31.7.2000 (Annx.9) with liberty to file the petition before the Principal Seat of this Court. Hence this petition.
3. The writ petition is mainly based on the grounds that the inquiry had not properly been conducted; the principles of natural justice have not been observed; the impugned order runs counter to the observations made by the criminal court while convicting the petitioner but granting him the benefit of the provisions of the Act, 1958 and, therefore, the orders are liable to be quashed. On the other hand, respondents have submitted that though the inquiry had been held but once the petitioner stood convicted, he has no right to continue in service and he could have been removed in exercise of the powers under Rule 161 of the Rules, 1987, which are analogous to the provisions of Article 311(2)(b) of the Constitution; moreso, the observation made by the Criminal Court that it would not affect petitioner's service career, is beyond jurisdiction and, thus, liable to be ignored; petitioner had not filed the orders of his dismissal dated 23.10.1990 or the order dated 30.7.1998 passed by'the Appellate Authority, therefore, the writ petition is not even maintainable.
4. I have considered the rival submissions made by the counsel for the parties.
5. It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surendra Singh v. Central Government (1), the Hon'ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record. The Apex Court observed as under:-
'In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it. In absence of impugned order it would not be possible to assign the reason which have impelled the authority to pass the order. It is, therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.'
6. Similar view has been taken by this Court without referring to the said judgment in Gautam Lal v. State of Rajasthan (2).
7. Petitioner has not filed the copy of the order dated 23.10.1990, nor he has asked the Court to issue direction to the respondents to give him the copy of the said order. It is strange that he preferred the appeal without obtaining the copy of the said impugned order. Nor he has filed the copy of the order passed by the Appellate Authority on 30.7.1998, though mentioned in the petition but has not been annexed. However, the said order has been placed on record by the respondents alongwith their reply as Annx.R/1. Though appeal is continuation of a suit, it may still be doubtful that petition can be entertained as such.
8. Be that as it may, even on merit, much has been argued by Mr. Vyas on non-observance of the principles of natural justice. I fail to understand where is the question of passing appropriate order in the departmental proceedings and observing any principle of natural justice when once petitioner - a member of the Disciplined Force had been found guilty of committing the theft- an offence involving moral turpitude by the Competent Criminal Court. Once the misconduct stood proved beyond reasonable doubt in a criminal trial, domestic enquiry loses its significance in this respect. The benefit granted by the trial Court, extending the benefit of the provisions of the Act, 1958 does not seem to be justified and the observation that conviction of the petitioner would not adversely affect his service career, also seems to be without jurisdiction and is liable to be ignored.
9. The undisputed legal proposition remains that all the orders have to be considered in the light of the statutory provisions and the case has to be examined in the entirety of the circumstances. (Vide Union or Territory, Chandigarh Administrative and Ors. v. Managing Society, Goswami GDSDC (3); and Karnal Durai v. District Collector, Tuticorin and Anr. (4). The Court cannot take a hyper-technical view of the matter.
10. Rule 161 of the Rules, 1987 provides for dismissal/removal of any employee if he stood convicted by a competent Court on a criminal charge. Therefore, in the instant case, petitioner, after being convicted by the criminal Court, should not be permitted to take a technical plea even if there had been non- observance of some principles, though Mr. Vyas could not point out specifically how the cause of the petitioner stood prejudiced even if there had been some non-observance of some principles of natural justice/statutory rules; rather his argument has been that once the petitioner had been extended the benefit of the provisions of the Act, 1958 and an observation had been made by the criminal court not to affect the service career of the petitioner, his removal is in contravention of the said judgment of the criminal Court.
11. The judgment of the criminal Court has attained finality as petitioner had not challenged it further in appeal. In the said judgment, petitioner has clearly been held guilty of the offence of theft and stood convicted for the said offence. The question; whether extension of benefit of the provisions of the Act, 1958 and the observation made by the criminal Court that petitioner's service career shall not be adversely affected, restrain the Disciplinary Authority to remove the petitioner from service.
12. The issues involved herein are no more res-integra. The Hon'ble Supreme Court dealt with the issue in Aitha Chander Rao v. State of Andhra Pradesh (5) making the following observations:-
'As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of Offenders Act.'
13. The said judgment in Aitha Chandra Rao (supra) was not approved by the Hon'ble Supreme Court in Hari Chand v. Director of School Education (6), observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words 'disqualification, if any, attaching to a conviction of an offence under such law' had not been considered, the said judgment cannot be treated as a binding precedent. The Apex Court interpreted the provisions of Section 12 of the Act, 1958 and held as under-
'In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words 'disqualification, if any, attaching to a conviction of an offence under such law' therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.'
14. In Ratan Lal v. Union of India and Ors. (7), this Court has placed reliance upon Hari Chand (supra) and has taken the view that the benefit of probation under the Act of 1958 merely takes away the effect of sentence and not of conviction.
15. In Trikha Ram v. K. Seth and Anr. (8), the Hon'ble Apex Court has held that if a person stands convicted and is given the benefit of the provisions of the Act of 1958, his services can be terminated only on the ground that he stood convicted. But by virtue of the provisions of Section 12 of the Act, 1958, his removal cannot be a 'disqualification' for the purposes provided in other Statutes. The same view has been reiterated in Union of India v. Bakshi Ram (9); Karam Singh v. State of Punjab and Anr. (10); Dy. Director of Collegiate Education (Admn.) v. S. Nagoor Meera (11); and Addl. D.I.G. of Police, Hyderabad v. P.R.K. Mohan (12).
16. Similarly, in Shanker Das v. Union of India and Anr. (13), the Hon'ble Apex Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the Act, 1958. 'There are Statutes which provide that the persons, who are convicted for certain offences, shall incur certain disqualification; for example, Chapter III of the Representation of Peoples Act, 1951 entitles 'disqualification' for Membership of Parliament and Stale Legislatures, and Chapter IV entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the Members of Legislatures or from voting at election to the legislature. That is the sense in which theword 'disqualification' is used in Section 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the Act takes away the effect of conviction for the purpose of service also.'
17. In Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Challappan (14), the Hon'ble Supreme Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine- qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.
18. In Dalbir Singh v. State of Haryana (15), the Hon'ble Supreme Court held that in serious nature of the cases the Court must dissuade from giving benefit of the Act.
19. Even if the trial Court or Appellate court gives benefit of the Act, 1958 to the accused, it has no competent to observe that criminal prosecution/conviction shall not adversely affect the service of the accused. This court in Smt. Radha v. Khajan Singh (16), while considering the appeal against the order of the trial Court in a case under the provisions of Sections 376, 406 and 498-A of the Indian Penal Code, made the following observations:-
'The release of accused Khajan Singh on probation will not be a disqualification attaching to the conviction with regard to the service and other consequential benefits which may otherwise accrue or otherwise admissible to him under the rules under Section 12 of the Probation of Offenders Act, 1958.'
20. In State of U.P. v. Ranjlt Singh (17), the Hon'ble Apex Court has held that the High Court, while deciding a criminal case and giving the benefit of the Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under:-
'We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his fully pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction.....'
21. In Commandant, 20th Battalion, ITB Police v. Sanjay Binjola (18), the Hon'ble Apex Court has held that benefit of the provisions of the Act, 1958 cannot be claimed as a matter of right. The Court must pass the appropriate orders in the facts and circumstances of each case having regard to the relevant factors. However, the Court should not give the benefit of the provisions of the Act in an undeserving case as such benefit can be given only in trival cases. However, competence to pass an order under the Act does not extend passing of orders interfering with the service career of the convict.
22. Similar view has been taken by this Court in Ratan Lai (supra).
23. Therefore, it is apparent that judgment of this Court in Smt. Radha (supra) is not in consonance with the law laid down by the Apex Court, and cannot be treated as precedent.
24. Petitioner cannot be permitted to agitate an issue that inspite of being convicted by a criminal Court, he cannot be removed from service and the orders passed in the inquiry etc. are bad in law. As the charge of misconduct stood proved beyond reasonable doubt before the Criminal court, there was nothing to be proved in the domestic enquiry. The Authority ought to have proceeded straightway under Rule 161 of the Rules, 1987 and dismissed the petitioner from service, but as the inquiryhas also been conducted against the petitioner and he has been found guilty in the inquiry, there is no scope of interfering with the findings recorded in the inquiry.
25. After considering the totality of the circumstances, pleadings and material on record, I reach the following inescapable conclusions:-
(i) Petitioner - a member of the Disciplined Force - stood convicted by a competent criminal Court for the offence of theft, which involves moral turpitude;
(ii) The judgment and order of the trial court, convicting petitioner for committing, theft, attained finality as the same has not been challenged further. Thus, the conviction still subsists;
(iii) Though petitioner did not deserve the benefit of the Act, 1958, but as it has been extended by the Court, it subsists. However, it does not remove the conviction and petitioner cannot claim that once the benefit of the Act, 1958 has been accorded, he cannot be removed from service;
(iv) The observation made by the criminal court that petitioner's conviction would not affect his employment, is without jurisdiction and worth to be ignored;
(v) Petitioner had been removed from service vide order dated 23.10.1990 prior to the grant of interim order by this court on 6.11.1990 In his writ petition;
(vi) The Writ Petition No.4457/1990, filed by the petitioner, was only for quashing the departmental proceedings and the impugned order dated 23.10.1990 was not under challenge;
(vii) The parties did not bring the factum of the order dated 23.10.1990 to the knowledge of the Court till withdrawal of the writ petition by the petitioner on 26.9.1997;
(viii) When petitioner preferred the representation in response to the show cause notice dated 28.9.1990, the Disciplinary Authority passed the order on 20.4.1998 that he had already been dismissed from service vide order dated 23.10.1990; thus, no further order was required;
(ix) The order dated 23.10.1990 has not been placed before this Court till today, nor any request for its production by the respondents has been made;
(x) The order which is not a part of the record, cannot be quashed;
(xi) The Appellate Authority, while disposing of the appeal, took note of the fact that petitioner stood convicted by the criminal Court in a theft case and dismissed the appeal by a reasoned and speaking order;
(xii) The purpose of holding the domestic enquiry is to find out as to whether the delinquent has committed the alleged misconduct; and
(xiii) The standard of proof in a domestic enquiry is on probabilities of preponderance. Once the petitioner stood convicted by a criminal Court, where a strict proof of proving of charge beyond reasonable doubt is required. The domestic enquiry loses its significance. In such a fact - situation, petitioner could have been removed under the provisions of Rule 161 of the Rules, 1987. However, as the inquiry has also been conducted and nothing specific has been pointed out as which statutory provision or principle of natural justice has not been observed and its non-observance has caused prejudice to the petitioner, the findings of facts recorded by the Enquiry Officer do not require any interference.
26. In view of the aforesaid conclusions, I am of considered opinion that the instant case does not present special features requiring interference under the limited jurisdiction of judicial review under Article 226/227 of the Constitution.
27. The petition is devoid of any merit and accordingly dismissed. There shallbe no order as to costs.