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Dhanji Ram Sharma Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 750-D of 1962
Judge
Reported inAIR1965P& H153; (1965)IILLJ327P& H
ActsDiscipline and Appeal Rules - Rule 1706; Code of Criminal Procedure (CrPC) , 1898 - Sections 197; Indian Penal Code (IPC), 1860 - Sections 420, 471 and 474
AppellantDhanji Ram Sharma
RespondentUnion of India and anr.
Cases ReferredUnion of India v. R. Akbar Sheriff
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is common ground that the complaint, which was filed by the petitioner against those officers, was ultimately dismissed, but the allegation of the petitioner is that this created a bad..........possibly mean conviction by an inferior court when the superior court sets aside the order of conviction. 'conviction' as used in this rule must be understood necessarily to main that the railway servant should stand finally convicted.(5) an attempt was made by mr. trikha to refer to certain allegation of misconduct against the petitioner. there is nothing in the written statement with regard to the same nor are any particulars of misconduct stated. at any rate, so far as the order of dismissal is concerned, any misconduct on which it may be open to the respondents to take departmental action would be wholly irrelevant because the order of dismissal is based solely and entirely on the so-called conviction of the petitioner.(6) i cannot help observing in this case that the attitude.....
Judgment:
ORDER

(1) The petitioner is an employee of the Northern Railway and he held the post of Ticket Collector Grade II at Delhi Main Railway Station till 16th December 1961. It is unnecessary to set out most of the facts out of which this petition arises as they are to be found in my judgment in Dhanji Ram Sharma v. Union of India, 1960-62 Pun LR 714: (AIR 1960 Punj 605). In that case I ordered that an appropriate writ should issue directing the respondents to treat the order of suspension dated 20th July 1957 as void, ineffectual and inoperative. It is apparent from the order of Dua J. in Dhanji Ram Sharma v. Union of India, AIR 1961 Punj 178 that the petitioner was held entitled to be paid an amount of Rs. 5059/13/- as wages for the period 16th April 1954 to 19th July 1957. In paragraph 5 of the present petition it is alleged that the petitioner was neither reinstated nor the wages were paid to him till 16th 1961 and by means of an order dated 13th December 1961 he was informed that he had been dismissed form service with effect from 10th December 1961 as a result of conviction by a Court of Law. In paragraph 6 of the petition it is stated that some criminal cross case against certain senior scale officers of the Northern Railway went up to the Supreme Court which was based on a complaint of the petitioner.

The decision of their Lordships is reported as Dhannjay Ram Sharma v. M. S. Uppadaya, AIR 1960 SC 745. It was held in that case that sanction under section 197 of the Code of Criminal Procedure was not necessary when it was alleged that the Railway servants had gone to the house of the complaint to witness a search and had committed offences of theft, misappropriation and wrongful confinement. It is common ground that the complaint, which was filed by the petitioner against those officers, was ultimately dismissed, but the allegation of the petitioner is that this created a bad feeling between the senior officers of the Northern Railway and him. The petitioner was prosecuted for offences under sections 474, 471 and 420 of the Indian Penal Code. He was convicted and sentenced to a term of two years rigorous imprisonment by the learned Additional Sessions Judge, Delhi on 7th October 1961. The petitioner field an appeal in this court and it is stated in paragraph 8 of the petition that he informed the respondents that he had field an appeal against his conviction and requested that no departmental action be taken till the decision of the appeal; not withstanding this the order of dismissal dated 16th December 1961 was made.

On 20th March 1962 the appeal of the petitioner in the criminal case was allowed by Shamsher Bahadur J. (Copy of judgment Annexure 'A'). It appears that on 28th December 1961 the petitioner field a departmental appeal against the dismissal order but no decision has been given on it till today. After the order of acquittal in the Criminal case the petitioner claims to have sent a fresh representation on 26th March 1962 pointing it out that his conviction had been quashed by this Court and praying that he be reinstated in service and also his wages for all the intervening period be paid. It is stated by the petitioner that no reply was ever received from the Railway. The orders of dismissal are sought to be quashed on the ground that the petitioner was entitled to the protection of Article 311 of the Constitution and proviso (a) to clause (2) did not apply to his case because there had been no conviction on a criminal charge so far as the petitioner is concerned.

(2) In the written statement apart from a number of denials all that is stated is that the petitioner was dismissed from service with effect from 16th December 1961 vide office letter dated 13th December 1961 as per instructions received from General Manager (P), New Delhi, vide his letter dated 5th December 1961 and the office (concerned) had no information that his conviction had been set side and further the order dismissing him from service was valid, effective and operative in the eye of law. It is further stated that he was lawfully dismissed on the basis of the conviction by the learned Additional Sessions Judge and notwithstanding his acquittal he was not entitled to reinstatement.

(3) It is most regrettable that the respondents should have taken up the attitude which has been done in spite of the clear pronouncement of this Court and of other High Courts with regard to the scope of proviso (a) to clause (2) appearing in Article 311 of the Constitution. As far back as the year 1958 it was held by me in Dilbagh Rai v. Divisional Superintendent Northern Railway New Delhi, 1958-60 Pun LR 597:(AIR 1959 Punj 401) that the word 'conviction' in that proviso can have only one meaning, namely, that the person must have been convicted finally. In other words, if a person is acquitted by a Court of appeal, it cannot be said that there is any conviction in the sense in which it is used in the aforesaid provision. A learned Single Judge of the Allahabad Court followed this decision in R. S. Das v. Divisional Superintendent, Allahabad, AIR 1960 All 538. A Division Bench of the Allahabad High Court in the Divisional Superintendent, Northern Rly. Allahabad v. Ram Saran Dass, AIR 1961 All 336 agreed with my view. A Division Bench of the Madras High Court in Union of India v. R. Akbar Sheriff, AIR 1961 Mad 486 considered the matter at length and observed that once the conviction was set aside or quashed the dismissal order must fall to the ground.

According to the learned Madras Judges, an acquittal of a person of a criminal charge by a higher Court setting aside the conviction passed by a subordinate or an inferior Court in tantamount to the person not having been convicted at all. Reference was made to my decision also by the learned Judges and to the observations made by me at page 402 in Dilbagh Rai's case, AIR 1959 Punj 401: 1958-60 Pun LR 597 and the same view was expressed. There can thus be no manner of doubt that in the reported decisions the position has been made quite clear that merely because a person has been convicted by a subordinate Court, his case is not covered by the aforesaid proviso. In spite of this the attitude taken up by the Railway authorities even up to the stage of the written statement is that a conviction which is later on set aside would justify dismissal. Mr. Nanak Chand who appears for the respondents, relies on the words in the proviso 'the ground of conduct which has led to his conviction on a criminal charge. ' This, according to him, means that any kind of conduct which has led to a person's conviction would bring him within the ambit of the proviso. As the law on the point is almost settled by now so far as the High Courts are concerned, I see no justifications or reason for taking any other view and on the plain language of the proviso I have no doubt that the view which has already been expressed is unassailable.

(4) Mr. Bal Raj Trikha on behalf of the respondents sought to place reliance on Rule 1706 of the Discipline & Appeal Rules for non-gazetted Staff contained in the Indian Railway Establishment Code, Vol. I, by which it is provided that a Railway Servant shall be liable to be dismissed from the service on his conviction by Criminal Court or by Court Martial etc. Here also the word is 'conviction' and that cannot possibly mean conviction by an inferior Court when the superior Court sets aside the order of conviction. 'Conviction' as used in this rule must be understood necessarily to main that the Railway Servant should stand finally convicted.

(5) An attempt was made by Mr. Trikha to refer to certain allegation of misconduct against the petitioner. There is nothing in the written statement with regard to the same nor are any particulars of misconduct stated. At any rate, so far as the order of dismissal is concerned, any misconduct on which it may be open to the respondents to take departmental action would be wholly irrelevant because the order of dismissal is based solely and entirely on the so-called conviction of the petitioner.

(6) I cannot help observing in this case that the attitude taken up by the respondents is not at all justified and it is most unfortunate that this Railway employee should have had to come to this Court again and again for the redress of his grievances when the law has been laid down in clear terms by the Courts. It is for all concerned including the Government Departments to follow the law or to take steps to approach the highest Court in the land, namely, the Supreme Court for a clear pronouncement on the point if there is any doubt or ambiguity but so long as the law laid down by the High Courts is clear and unequivocal, I can find no reason whatsoever for the petitioner being subjected to this kind of treatment. If he is as been suggested by Mr. Bal Raj Trikha, a dishonest employee who is guilty of gross misconduct then proper proceedings should be taken should be dismissed on grounds which are wholly untenable. Mr. Trikha has now said that the Railway authorities had every intention of reinstating the petitioner and paying him the wages which are due to him but that the result of the present writ petition was being awaited. Also as the petitioner had been moving one Court or the other, the wages were being withheld. Be that as it may, this petition must be allowed and it is hereby allowed and a writ shall issue directing the respondents to treat the order of dismissal of the petitioner dated 13th December 1961 as wholly illegal, void and ineffective. It is unnecessary in view of the statement of Mr. Trikha to make any order with regard to the wages nor would it be appropriate to make any such order in a writ petition. The petitioner shall be entitled to his costs in this Court.

(7) Petition allowed.


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