Article 311(2)(a) | No Prior Hearing Needed For Cop's Dismissal After Corruption Conviction: Gujarat High Court
The Gujarat High Court has upheld the dismissal of a police constable after conviction in corruption case, observing that disciplinary authority can decide on the delinquent's conduct and award punishment without affording an opportunity of hearing due to exclusionary affect of second proviso to Article 311(2)(a) of Constitution. Justice Maulik J Shelat referred to Supreme Court's...
The Gujarat High Court has upheld the dismissal of a police constable after conviction in corruption case, observing that disciplinary authority can decide on the delinquent's conduct and award punishment without affording an opportunity of hearing due to exclusionary affect of second proviso to Article 311(2)(a) of Constitution.
Justice Maulik J Shelat referred to Supreme Court's Constitution bench decision in Union of India & Anr. Vs. Tulsiram Patel (1985) and said:
"It is deduced from the aforementioned dictum that in a case where Government Servant has been convicted on a criminal charge, the Disciplinary Authority only requires to consider whether the conduct of delinquent leading to the conviction warrants the imposition of a penalty. For that purpose, it will have to pursue the judgment of the criminal Court concerned and consider the all facts and circumstances of the case. As held, this has to be done by the Disciplinary Authority ex parte and by itself. Once the Disciplinary Authority reaches to the conclusion that government servant's conduct was such as it requires his dismissal etc., same should be decided by him. It is clearly held that the aforesaid has to be done by the Disciplinary Authority without hearing the concerned government servant, due to reason of exclusionary effect of the second proviso to Article 311(2)(a) of the Constitution. Thus, in view of the aforesaid dictum, there cannot be any second view which can be taken at least by this Court, rather it requires to follow and apply the ratio laid down by the Hon'ble Apex Court in the case of Tulsiram Patel (supra) in appropriate case, such as present one".
The high court further referred to high court's decision in H.N.Rao Vs. State of Gujarat & Ors. (2000) which was also confirmed by the court's Division Bench by following the Supreme Court's judgment in Tulsiram Patel.
The court noted that the judgment relied upon by the petitioner in Budhsinh Jaisinh Patel Vs. State of Gujarat (2018) wherein facts were similar to present case and the coordinate bench of the court had held that it is a condition precedent that authority must issue notice before the dismissal order, observing that principles of natural justice is pre-requisite in law.
Referring to these judgments, the court said:
"It appears that in the case of Budhsinh Jaisinh Patel (supra), the above referred provisions of the Act and Rules discussed above either not brought to the notice or in absentia, only placing reliance upon decision of the Hon'ble Apex Court in the case of Sunil Kumar Sarkar (supra) and unnoticing the ratio of Constitution Bench decision in the case of Tulsiram Patel (supra), held that ratio of decision of this Court in the case of H.N.Rao (supra), no more stand to be good law. With profound respect, and in view of the aforesaid, I am unable to subscribe to the view taken in case of Budhsinh Jaisinh Patel (supra). In my view, the decision of this Court in the case of H.N. Rao (supra) continues to hold the field and is, in fact, good law; rather, decision of a coordinate bench in the case of Budhsinh Jaisinh Patel (supra), and other decisions followed such decision, run contrary to decision of the Constitution Bench in the case of Tulsiram Patel (supra), are no longer remain good law".
The court thus said that in absence of any specific statutory provision granting any opportunity of making representation or otherwise, there is no legal requirement to issue a show cause notice to State Government servant such as the petitioner prior to passing an order of punishment, provided the case is governed by second proviso to Article 311 (2) (a) of the Constitution as per which no prior show cause notice is required to be served.
The petitioner was appointed as a Police Constable on 30.04.2001. Subsequently an FIR was registered against him for the offences punishable under Prevention of Corruption Act.
The petitioner was suspended on 27.09.2010 and upon his request made after three years of suspension, he was reinstated vide order dated 07.02.2013. On 30.04.2019 the sessions court convicted the petitioner.
The petitioner challenged the conviction before in appeal before high court, which was admitted but conviction was not stayed and had only suspended the sentence awarded to petitioner.
Since the petitioner was found convicted, respondent No.4 Superintendent of Police Valsad on 19.07.2019, dismissed the petitioner from service. After respondent 3- Inspector General of Police and respondent 2- Director General of Police refused to interfere with the dismissal, the petitioner approached the high court.
The petitioner argued that irrespective of conviction, SP Valsad could not have dismissed the service of the petitioner without affording an opportunity of hearing
The petitioner argued no show cause notice served upon him which is a 'sine qua non' before passing order of dismissal. Hence the dismissal was against principles of natural justice.
State opposed the petition on the ground that once the petitioner is found to be convicted under the PC Act, then pursuant to the second proviso to Article 311 (2) (a) of the Constitution, no prior show cause notice was required to be served upon the petitioner. Thus, there is no violation of principles of natural justice, as alleged.
The high court said that petitioner was a police personnel found convicted as per the provisions of the PC Act and upon going through the order impugned in the petition, the court was of the view that SP Valsad has taken into account the relevant aspect which requires to be verified.
"It has been clearly recorded in the impugned order that petitioner was tried for ACB case under the Act, 1988 and having found convicted by the Special (ACB) Court and considering such serious conduct of the petitioner for which he is convicted, then observed that it would not be desirable to continue him in service, thus, it has passed impugned order of dismissal. According to my view, no error can be found in the order impugned in any respect. In view of the foregoing observations and reasons, and having analyzed the applicable statutory provisions in the present case alongside the ratio laid down by the Constitution Bench of the Hon'ble Apex Court in Tulsiram Patel (supra), I am of the view that there is no legal requirement to issue a show cause notice to the petitioner prior to passing of the impugned order of punishment by respondent No.4," the court said.
The plea was dismissed.
Case title: PIYUSHBHAI BHAGVATBHAI GAMIT v/s STATE OF GUJARAT & ORS
R/SPECIAL CIVIL APPLICATION NO. 7162 of 2022