S.A. Shah, J.
1. The petitioner who was a police constable has challenged the order of his dismissal passed by the District Superintendent of Police, Kaira on 18-7-1975, produced at Annexure-C to the petition.
2. It appears that the first respondent, District Superintendent of Police, Kaira has dismissed the petitioner from service on the ground that the petitioner was convicted by the Judicial Magistrate, First Class, Kaira, under Section 145 of the Bombay Police Act, 1951, and, therefore, his conduct cannot be said to be fit to continue him in service. Against the said decision the petitioner filed an appeal before the Dy. Inspector General of Police, Gandhinagar who accepted the decision of the District Superintendent of Police and dismissed the appeal. Against the said decision of the Dy. Inspector General of Police, the petitioner filed a revision application before the Inspector General of Police who also dismissed the same by his order dated 4-3-1977 on the ground that he had no power to hear the revision. Being aggrieved by the aforesaid decision, the petitioner has filed this petition and challenged the order of dismissal on the following ground:
(a) That the order of the District Superintendent of Police dismissing the petitioner from service was ex facie bad on the ground that he had not served any show-cause notice nor has he heard the petitioner before passing the order of dismissal.
(b) Though the provision of Article 311(2)(a) gives power to the competent authority to pass an order of punishment the same can only be passed by application of mind and the penalty should be imposed according to the delinquency. In the instant case, the petitioner was absent on account of sickness for five days. The authorities have, therefore, not applied the mind nor have they given reasons for passing laconic order imposing the extreme punishment of dismissal which is arbitrary and illegal.
(c) The petitioner was imposed the penalty of drill and the impugned order has been passed after one year from the date of decision of the Criminal Court, which is against the policy of the State Government and, therefore, arbitrary and illegal.
(d) That the decision of the Criminal Court cannot be relied upon because it does not disclose that offence was committed by the petitioner. In any view of the matter the Court has given benefit of Section 3 of the Probation of Offenders Act which ought to have been considered for mitigating the offence or atleast the punishment by the Departmental authorities.
3. The petition shall have to be allowed on the first contention of Mr. Brabmbhatt, the learned advocate appearing on behalf of the petitioner, because in para 4 of the petition the petitioner has in terms stated that suddenly, without any inquiry and without any notice, on 20th May, 1976 the respondent No. 1, D.S.P. of Kaira district passed an order of dismissal. In reply to this averment, the District Superintendent of Police, Kaira who filed his affidavit on 2nd June, 1981 stated in para 4 that if a person is convicted by the Court it is not necessary to give him reasonable opportunity of showing cause against the action proposed to be taken. It, therefore, necessarily means that the competent authority has not given any show cause notice to the petitioner before passing the extreme penalty of dismissal from service.
4. In the interest of justice I enquired from Mr. Bukhari, learned advocate appearing on behalf of the respondents, if any notice was given to the petitioner and, if so, the Court will take it on file. But Mr. Bukhari was unable to produce any notice given by the competent authority before passing the impugned order.
5. It is no doubt true that the proviso (a) to Article 311(2) gives power to the competent authority to impose major penalty of dismissal or removal from service or reduction in rank if the conduct of an employee has led to conviction on a criminal charge. But the authority is enjoined to take into account not merely the fact of conviction but also to examine the conduct leading to his conviction and consider inter alia the nature and quantum of penalty to be imposed upon the delinquent. There is nothing to debar such authority from affording reasonable opportunity to the person concerned to satisfy itself that the conduct resulting in his conviction rendered him unfit for being retained in service or to consider what punishment would suffice to meet the situation.
6. In the case of the Divisional Personnel Officer, Southern Railway and Another v. T.R. Challappan : (1976)ILLJ68SC , while interpreting Rule 14 of the Railway Rules, the Supreme Court has observed as under:
It is not at all necessary for the disciplinary authority to order fresh departmental inquiry which is dispensed with under Rule 14 of the Rules of 1968 which incorporates the principles contained in Article 311(2) proviso(a). This provision confers power on the disciplinary authority to decide whether in the facts and circumstances of a particular case what penalty, if at all, should be imposed on the delinquent employee. It is obvious that in considering this matter the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features, if any, present in the case and so on and so forth. It may be that the conviction of an accused may be for a trivial offence as in the case of the respondent T.R. Challppan in Civil Appeal No. 1664 of 1974 where a stern warning or a fine would have been sufficient to meet the exigencies of service.
The Supreme Court further observed as under:
The statutory provision referred to above merely imports a rule of natural justice in enjoining that before taking final action in the matter the delinquent employee should be heard and the circumstances of the case may be objectively considered. This is in keeping with the sense of justice and fair-play. The disciplinary authority has the undoubted power after hearing the delinquent employee and considering the circumstances of the case to inflict any major penalty on the delinquent employee without any further departmental inquiry if the authority is of the opinion that the employee has been guilty of a serious offence involving moral turptitude and, therefore, it is not desirable or conducive in the interest of administration to retain such a person in service.
7. In the case of Chhotabhai Bhikhubhai Patel v. The State of Gujarat Spl. C.A. No. 927 of 1961, decided on 18/19th August, 1981, P.D. Desai, J. (as he then was) has observed that:
Even in cases where it is proposed to dismiss upon a conviction in a criminal case, it is essential to give an opportunity of being heard because the delinquent may point out circumstances which go to show that the extreme penalty of dismissal is not warranted. It also cannot be assumed that the opportunity of hearing to be afforded in such cases is a mere formality. In fact, such an attitude would show the element of pre-judgment.
8. It may be borne in mind that what proviso (a) of Article 311(2) of the Constitution provided is exemption from holding an inquiry by following the procedure laid down in Article 311(2) i.e. of making an elaborate inquiry, regarding the proof of the delinquent because the offence charged against the delinquent officer is proved in a criminal, court. But still the competent authority has to decide whether his conduct which led to the conviction was such that it entails extreme penalty of dismissal or removal from service or reduction in rank or a lighter punishment should be imposed upon him, because what is material is not the conviction but the conduct of the Government servant which has resulted into his conviction. The Supreme Court has given several illustrations to show that an offence may be a trivial offence but it may not justify an extreme penalty of dismissal and that is why such opportunity is required to be given to the delinquent officer. Unfortunately in this case no such opportunity has been given to the petitioner. Not only that, but a very belated action has been taken inasmuch as the petitioner was convicted by the criminal court on 18th July, 1975 whereas the order of dismissal from service was passed on 20th May, 1976, i.e. after about ten months from the date of conviction. It is, therefore, clear that the impugned order of dismissal has been passed by the competent authority in violation of the principles of natural justice, i.e. without giving show-cause notice or without hearing the petitioner and, therefore, the order is non-est ab initio void and requires to be set aside.
Since I have allowed the petition on the first submission it is not necessary to deal with the other submissions of the petitioner. However, it will not be out of place if the scheme of Article 311(2) proviso (a) is discussed for the guidance of the authorities.
9. Article 311(2) of the Constitution grants two protections to a member of the Civil Service namely, (1) such servant shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and (2) such civil servant shall not be dismissed or removed or reduced in rank except after holding an inquiry in which he is informed of the charges against him, and given reasonable opportunity of being heard in respect of those charges, provided where it is proposed after inquiry to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during the inquiry, and, it shall not be necessary to give such person any opportunity of making any representation on the penalty proposed. There are three exceptions to Sub-clause (2) of Article 311. One of such exceptions is proviso (a) which has been applied to the present case. The reason for this proviso is obvious. When a person has been convicted by a competent court in a criminal charge it is futile to hold a new inquiry and take evidence to prove the same charges. Under proviso (a) the competent authority can proceed to impose a proper penalty without holding any inquiry to prove the charges against the delinquent. Still, however, a mere conviction is not sufficient for imposing punishment. The competent authority has to consider the conduct of the delinquent officer which has led to his conviction, and has to decide whether a person who has been convicted for an offence is fit to be retained in service on the ground of his conduct. It may be that the conviction of an accused may be for a trivial offence in which case a fine or reduction in salary or stoppage of increment would have been sufficient to meet the interest of justice. It may be possible that the delinquent officer may be guilty of some technical offence like violation of transport rules or some Municipal rules. It is for the disciplinary authority to consider, taking into account the mitigating factors, if there is any such case. It is no doubt true that the conviction of a delinquent officer would be taken as a sufficient proof of his misconduct. But then the authority has to embark upon a summary inquiry as to the nature and extent of penalty to be imposed on the delinquent officer and if the authority comes to the conclusion that the offence is too trivial or of a technical nature it may refuse to impose any penalty in spite of the conviction, or it may impose a lighter punishment than an extreme punishment of dismissal. But in any case the competent authority has to apply its mind and impose a penalty which is consistent with the delinquency of the officer.
10. It has been stated by the learned Counsel appearing on behalf of the petitioner that the petitioner had already undergone the punishment of drill and that though the petitioner has remained absent it was on account of his illness and the petitioner has been convicted only on an admission and, that too, the trial court has taken a very lenient view and has not imposed any punishment. In my opinion, these are the mitigating circumstances which ought to have been weighed with the competent authority, unfortunately there is no indication as to how the competent authority has arrived at a decision to impose extreme penalty of dismissal. In the circumstances stated above the decision of the competent authority also suffers from clear non-application of mind.
10.1. Since I propose to set aside the impugned order on the grounds mentioned above, it is not necessary to deal with other submissions. The petitioner has not made any averment regarding back-wages. He has not stated that he has remained unemployed during pendency of the impugned orders. It is, therefore, not possible for me to grant any other relief, on this court. However, the petitioner is given liberty to take appropriate proceedings for back-wages, if he so desires.
11. In the result the petition is allowed. The order of dismissal passed by respondent No. 1 dated 20th May, 1976 - Annexure-C to the petition and appellate order at Annexure-D and revision order dated 4-3-1977 at Annexure-E are quashed and set aside, being illegal and void. The petitioner shall be deemed to have continued in service. The respondents are directed to reinstate the petitioner forthwith. Rule is made absolute with no order as to costs. Writ to be issued forthwith for reinstatement.