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Disciplinary proceeding against government servant cannot be barred merely because sentence has been

 Life Insurance Corporation of India Vs Mukesh Poonamchand Shah Civil Appeal No. 1804 of 2020

The judgment pronounced by justice Dr Dhananjaya Y Chandrachud and Hemant Gupta on February 25, 2020

Facts

The respondent was appointed as development officer in Life insurance corporation of India. The respondent was prosecuted for offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Section 120B read with Sections 420, 467, 468 and 471 of the Penal Code. The respondent preferred a criminal appeal before the High Court of Gujarat challenging his conviction. The appeal is pending before the High Court. the appellant issued a notice to show to the respondent under Regulation 39(4)(i) of the 1960 Regulations proposing to impose the penalty of removal from service in view of his conviction by the Special Judge, CBI. The Division Bench restrained the appellant from passing final orders on the notice to show cause pending disposal of the criminal appeal. The appellant preferred a Special Leave Petition before this Court under Article 136 of the Constitution against the judgment of the Division Bench which has given rise to the present appeal.

Contention

Learned counsel appearing for appellant, contented that

I. In terms of the provisions contained in Regulation 39(4) of the 1960 Regulations, the appellant is entitled to proceed against the respondent upon his conviction on a criminal charge;

II. No question of double jeopardy that attracts the provisions of Article 20(2) of the Constitution can arise in a situation where the service regulations Special Civil Application no 12855 of 2017 empower the employer to proceed against the employee upon his conviction on a criminal charge;

III. The High Court by directing the appellant from refraining from taking any action against the respondent pending the disposal of the criminal appeal has erroneously interfered with the exercise of the disciplinary jurisdiction of the appellant; and

IV. The order of the learned Single Judge dated 21 August 2014 did not stay or suspend the conviction of the respondent pending the disposal of the criminal appeal but only suspended the sentence as a result of which the conviction has not been obliterated or effaced.

Learned Senior Counsel for the respondent submitted that:

I. Originally, in the course of the disciplinary proceedings, the respondent was proceeded against under Regulation 39(1) (a to g) of the 1960 Regulations;

II. The underlying facts on the basis of which the disciplinary enquiry was instituted and the criminal prosecution took place are identical;

III. The appellant having imposed a penalty in the course of the disciplinary proceedings by reducing the respondent’s basic pay to the minimum of the time scale has exhausted its disciplinary jurisdiction and is not entitled to issue a fresh notice to show cause for removal from service;

IV. Regulation 39(4) dispenses with the requirement of a notice to show cause and an opportunity to defend. Recourse to the above power can be taken only when the employer has not exercised its disciplinary jurisdiction under clauses (1) and (2) of Regulation 39; and

V. There has been an unexplained delay on the part of the appellant in issuing a notice to show cause.

The court observed in this regard was elaborated upon in a judgment of a two judge Bench decision of this Court in Dy Director of Collegiate Education (Admn) v S Nagoor Meera13, where Justice B P Jeevan Reddy speaking for the Court held: “taking proceedings for and passing orders of dismissal, removal or reduction in rank of a government servant who has been convicted by a criminal court is not barred merely because the sentence or order is suspended by the appellate court or on the ground that the said government servant- accused has been released on bail pending the appeal.” The Court held that when a major penalty was proposed to be imposed on the ground of the conduct of the employee which had led to conviction on a criminal charge, it was not necessary to take recourse of the provisions of Rules 7(1) and (2) of the Haryana Civil Services (Punishment and Appeal) Rules 1987 relating to the convening of an inquiry in which a reasonable opportunity of showing cause would have to be given.

Regulation 39(4) operates with a non-obstante clause. In terms of Regulation 39(4)(i), “where a penalty is imposed on an employee on the grounds of conduct which had led to a conviction on a criminal charge”, the appellant is independently entitled to take steps against the employee. It is in pursuance of the above provision that a notice to show cause was issued to the respondent. The judgment of the Division Bench restraining the appellant from taking a final decision on the show cause notice pending the disposal of the criminal appeal has no valid basis in law.

We accordingly allow the appeal and set aside the impugned judgment and order of the Division Bench. As a consequence, we confirm the order and judgment of the learned single judge dismissing the Special Civil Application filed by the respondent.

View/Download Judgment: Civil Appeal No. 1804 of 2020

– Aarthy K

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