Article 311 | Every Conviction Cannot Entail Automatic & Mechanical Removal Of Convicted Employee: Himachal Pradesh High Court

The Himachal Pradesh High Court on Monday ruled that the provisions contained in proviso (a) to Clause (2) of Article 311 of the Constitution of India read with Rule 19(i) of CCS (CCA) Rules 1965 certainly provide that on conviction an employee can be dismissed/removed/reduced in rank, without conducting any enquiry, but it cannot be construed that every such conviction shall be followed by an automatic and mechanical removal of the convicted employee.

The observations to this effect were made by Justice Vivek Singh Thakur while hearing a plea in terms of which the petitioner had challenged his order of removal from the services

The petitioner premised his challenge on the ground that despite having been sentenced for the same offence once, his removal from service on the same offence is illegal, arbitrary, discriminatory, unjustified, unconstitutional and violative of Articles 14 and 16 of the Constitution of India.

The petitioner further contended that he has a right to continue in the job as conviction in a criminal case does not warrant automatic dismissal from the service and as a result of illegal and arbitrary act of the respondents, petitioner has been made to suffer financially and socially.

Per contra, the respondents justified the act by saying that in view of provisions of Rule 19 of CCS (CCA) Rules, 1965, that after an employee is convicted and sentenced, employer has a right to remove him from service as provided under clause (i) of Rule 19 of CCS (CCA) Rules, 1965.

After anxiously considering the rival contentions the court referred to Union of India Vs. P.D. Yadav, (2002) and observed that the plea taken by the petitioner that since he already had undergone a sentence for the said offence once, a penalty upon him cannot be imposed by the employer invoking provisions of CCS (CCA) Rules, was not sustainable.

However, while observing the same the bench clarified that the Article 311 of the Constitution of India and Rule 19(i) of CCS (CCA) Rules provide that on conviction an employee can be dismissed or removed or reduced in rank, on the ground of conduct which led to conviction on criminal charge, without conducting any enquiry, but the same should not be automatic removal.

The bench further added that the Employer having right to remove the employee from service, without enquiry, has to consider all relevant factors, like nature and gravity of offence, impact of conviction on service, suitability of employee in service after conviction, and competent authority is expected to exercise its power under these provisions after due caution and considerable application of mind.

"It also has to consider that the conduct of the employee was such as warrants imposition of penalty and, if so, what that penalty should b, as these provisions not only provide dismissal or removal from service but also in alternative, reduction in rank which definitely provides discretion to the competent authority to impose",the bench underscored.

Pointing out to the alternate remedy available to the petitioner to assail his removal order the court said that this Court refrains and hesitates from entertaining the petition under Article 226 of the Constitution of India directly without exhausting the alternative remedy available under the statute, but this Court is not inhibited from entertaining the petition under Article 226 of the Construction for not availing alternative remedy, in the exceptional circumstances.

Since no exceptional circumstance was culled out in the petition for not exhausting the alternative statutory remedy, the bench instead of deciding the matter on merits by dealing the contentions of the parties, present petition disposed of the petition with liberty and permission to the petitioner to approach the Appellate Authority by filing an appeal afresh, if advised so.

Such appeal, if preferred by the petitioner, shall be decided by the Appellate authority on or before 15th May, 2023, the bench concluded.

Case Title: Mohinder Singh Vs Himachal Pradesh Transport Corporation.

Citation: 2023 LiveLaw (HP) 12

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