UNION OF INDIA Vs. MASHIH ALIAS MASICHARAN

JUDGEMENT

(1.) THIS second appeal has been filed by the Union of India being aggrieved by the concurrent decision of the two courts below. The plaintiff had come to the court on the allegations that the order dated March 31, 1973 compulsorily retiring him from service with retrospective effect from 20th January, 1973 was illegal and ultra vires.

(2.) THE plaintiff-respondent who happens to be sweeper by caste was working as Mali in the Horticulture Department (Archeological Survey of India) and was later on promoted as Assistant Foreman. While he was so posted at Etmad- ud- daula, Agra he got involved in a criminal case under Section 323/325 IPC and was convicted. THE conviction was upheld by the High Court although the period of imprisonment was reduced to the one already undergone. On the basis of this conviction and without any thing more the plaintiff was retired from service compulsorily under Rule 19 Central Civil Services (Classification and Appeal) Rules. Both the courts below have concluded that a mere conviction of a Government employee cannot be the basis of compulsory retirement of an employee unless the conduct resulting in his conviction was relatable to his misconduct as an employee.

(3.) REFERENCE was made to 198,1 AWC 385 (FB) (Maqsoodan Pathak v. Security Officer) where a Full Bench of this court was dealing with rule 47 of the Railway Protection Force Rules which is almost in similar language as Rule 19, now under consideration. In that case, however, action bad been taken against the employee for compulsory retirement under rule 19 (2) without having recourse to a regular enquiry even though the employee had not been previously convicted by any court. In those circumstances, as rightly held by the Bench, a full enquiry could not have been by-passed The situation in the present case is different. The delinquent employee was compulsorily retired from service merely on the basis of his conviction without taking into consideration whether the offence for which he had been convicted related to his mis-conduct or misbehaviour as an employee. It is now well established that before any action can be taken under this sub-rule, the conduct of the employee resulting in his conviction must be referable to his 'conduct' (mis-conduct or mis-behaviour) as a Government employee (See: 1975 Labour & Industrial Cases, 1732 and 1973 Punjab & Haryana,). The impugned order does not indicate that the quarrel involving the respondent near his residence had any relation with such misconduct or misbehaviour. The incident took place far away from the place of his employment and was wholly unconnected with his duties under the Government. In the circumstances, the order of compulsory retirement was bad and not In consonance with Rule 19.