Mohd. Shamim, J.
(1) Petitioner through the present writ petition seeks quashment of the order dated July 1, 1977 passed by the Commissioner, Municipal Corporation of Delhi whereby the petitioner was dismissed from service, and his reinstatement with full back wages.
(2) The facts which are necessary to be gone into for the disposal of the preset petition are as under : that the petitioner was ie- crusted as a lower division clerk by the respondent vide their appointment letter dated July 14, 1958 in the scale of Rs. 63-8l-EB-4-125- 130 on a properly temporary basis in the Engineering Department. Later on the" petitioner was posted as a Bill Clerk, in Zone No. E.E. (IV), Jhandewalan, Delhi in the year 1963. Shri Prabhakar Swarup was acting as an Executive Engineer in the said Zone in the year 1964.
(3) The Director of Vigilance, Shri Chaturvedi Along with certain other officers raided the office of the Executive Engineer-IV, where the petitioner was working, on December 11, 1964. The petitioner by that time had left the office. The Executive Engineer, Mr. Prabhakar Swarup was asked to open the cash chest. It was found empty. Neither any money nor any document was recovered there from.
(4) The .'aid raiding party again visited the aforesaid office on the next day at 10.30 a.m. On search of the office acquaintance rolls for the month of August 1964 were found missing. It is alleged that the petitioner volunteered to deposit a sum of Rs. 3,000 with the respondent which was lying with him undisbursed. Later on the Vigilance Department of the respondent got registered against the petitioner three cases i.e. F.I.R. Nos. 216, 480 & 897 of 1965 at police station Pahar Ganj. Delhi. The petitioner was challaned on the basis of the said FIRs. Five challan sheets were prepared under Section 5(1)(C) of the Prevention of Corruption Act read with Sections 40914681471134 of the Indian Penal Code. The petitioner was assured by the Department that in case he deposited the above said amount no criminal proceedings would be initiated against him.
(5) On the basis of the said FIRs five charge sheets were submitted before the Special Judge. The Special Judge discharged the petitioner in all the said cases as he was of the view that the sanction granted was defective. However, the learned Special Judge permitted the prosecution to secure a new sanction from the competent authority to initiate criminal proceedings against the petitioner. Consequently after obtaining sanction from the Commissioner of the respondent Corporation fresh charge sheets were submitted against the petitioner being case Nos. 10/68, 11/68, 12168, 15168 & 16168. The said cases were decided on July 31, 1975 by the Special Judge. The learned Special Judge acquitted the petitioner in Case No. 12/68. However, he was convicted in- other two cases i.e. C.C. Nos. 10/68 & 1 1 [68. The learned Special Judge took a lenient view and released the petitioner on probation of good conduct, though he was sentenced to simple imprisonment till the rising of the court.
(6) The petitioner was suspended by the respondent as soon as the criminal proceedings were initiated against him in the year 1965. Later on his suspension' was revoked in the year 1971 keeping in view the good conduct and behavior of the petitioner.
(7) Subsequently the petitioner was dismissed from service on July 1, 1977 i.e. after two years of his conviction' alluded to above. The petitioner represented against his dismissal vide his representation dated September 22, 1977. However, the same was rejected on December 16, 1977. The impugned dismissal order is illegal, unconstitutional, wrongful and not sustainable in the eye of law. it is void ab initio inasmuch as the same has been- passed in contravention of Section 9 of the Delhi Municipal Corporation Service (Control & Appeal) Regulations. 1959. The petitioner was neither served with a show cause notice nor a hearing was granted to him. The impugned' order is in contravention of Art. 14 of the Constitution of India. The order in question is contrary to the principles of auto alteram partem and rules of natural justice. The order of dismissal visits a government employees with penal consequences, hence it must therefore. be a speaking order. The impugned order is not a speaking order and is as such in violation of the principles of natural justice. The above said order does not show as to what weighed with the authorities concerned to resort to the extreme penalty of dismissal of the petitioner. The above said order is also in contravention of Section 12 of the Probation of Offenerds' Act. Hence arose the necessity for the presentation of the present petition.
(8) The petitioner died during the pendency of the writ petition on September 23, 1991 leaving behind his wife Smt. Kusum Seth and two daughters Ms. Vandana Seth and Smt. Archana Kaira. Their names were substituted in place of the deceased Shri Nirankar Prasad Seth vide order dated February 20, 1992.
(9) The respondent through their counter affidavit have not disputed the facts as narrated by the petitioner. However, they have denied the fact that the impugned order is illegal and invalid. According to them, the impugned order was passed in accordance with the rules and' the law. The principles of natural Justice are not applicable to the facts of the present case inasmuch as the petitioner was convicted by a criminal court and as such no enquiry or hearing was required before imposition of penalty on the petitioner. The impugned order was passed after full application of mind to the facts and circumstances of the present, case. The petition is thus false and frivolous and is liable to be dismissed.
(10) Learned counsel for the petitioner has assailed the legality and the validity of the dismissal order alluded to above, inter alia, on- the following grounds : that the impugned order was passed by the municipal authorities without affording the petitioner an opportunity of being heard. He was never served' with a show cause notice. No departmental enquiry was held. He was thus dismissed from service simplicitor on the ground of his conviction by the criminal court. Such an order is thus not sustainable in the eye of law and is liable to be quashed.
(11) Learned counsel for the respondent has urged to the contrary. According to him, the order in question with regard to the dismissal of the petitioner was passed in accordance with Rule 9(1) of the C.C.S. (Conduct and Appeal) Regulations, 1939. Learned counsel further contends that the petitioner was not entitled to a hearing nor to a show cause notice as per the provisions of Article 311(2)(a) of the Constitution of India.
(12) Since we are concerned with the construction of Regulation. 9(1) adverted to above, the provisions of the said Regulation can be adverted to with profit. It provides as under :- 9. Special procedure in certain cases-Notwithstanding anything contained in regulation 8 :-
(I)where any penalty is imposed on an employee of the Undertaking on the ground" of conduct which has led to his conviction on a criminal charge; or (ii) Where the authority empowered to remove or dismiss an officer or other employee is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in these regulations, the disciplinary authority may consider the circumstances of the case and pass such order there on as it deems fit".
(13) Article 311 of the Constitution of India is in the following words :-
"311(1)No person who is a member of a civil service of the Union or an all-India service or a Civil Service of a State or holds a Civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. (2) No such persons aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been enforced of the charges against him and given a reasonable opportunity of being heard in respect oil those charges. Provided ........ Provided further that this clause shall not apply- (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge".
(14) It is manifest from above that a person who has been convicted on a criminal charge is neither entitled to the benefit of Regulation 8 which deals with the elaborate procedure for imposing penalties on the employees of the Municipal Corporation nor to the benefit of the provisions of Art. 311(2) of the Constitution of India which en-visages that no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given- a reasonable opportunity of being heard in respect of those charges. Thus an exception has been carved out in case of those employees who are guilty of a conduct which has led to their conviction by a criminal court The authorities who arc required to deal with such type of persons need not take tile trouble of holding an inquiry and of serving such types of persons with a show cause notice. They can impose and inflict any penalty which they think proper in the circumstances of a given case keeping in view the conduct of the person which led to his conviction on- a criminal charge. The reason behind the said statutory cum Constitutional provisions dispensing with the show cause notice and inquiry is that the prosecution is required to prove the guilt of the accused beyond any shadow of doubt. A duty has been cast on the shoulders of the criminal court to see to it that the guilt of the accused is proved beyond any iota of doubt before a conviction is recorded against an accused person. The onus to prove the charge against the accused is very onerous and it never shifts. As accused is under no obligation to show that he is innocent of the charge which has been levelled against him. It is the duty of the prosecution to prove his guilt beyond any shadow of doubt Civil cases or the departmental inquiries which are conducted into the alleged misconduct of a person are decided on the basis of preponderance of evidence. Thus when a person on a criminal trial has been found guilty by a court of law then to hold an inquiry over again would be a sheer wastage of time. Hence it was though fit and proper to dispense with inquiries in such type of cases.
(15) The above view is supported by the observation's of their Lordships of the Punjab and Haryana High Court as reported in Om Prakash v. The Director, Postal Services, . . . .(1) whereas in the case of a conviction', the application of the purview of Article 311(2) is excluded by proviso (a) to that provision and the application of Rules 14 to 18 of 1965 Rules is excluded by Rule 19(i) of those Rules, the application of the principles of natural justice is excluded by the proviso to Article 311(2) read with the purview of Article 310 and by the operation- of Rule 19 in view of the fact that the concerned Government servant must naturally have had full opportunity to defend himself in the Criminal Court where the conviction can be recorded only after returning a finding of guilt on the basis of a much higher standard of proof than that which is enough for punishing a person in departmental proceedings". 16. To the same. effect are the observations of the Rajasthan High Court as reported in Kuldeep Singh v. Union of India, 1975(1) Slr 792, . . ."(2) We are of the opinion that proviso (a) to article 311(2) of the Constitution of India, with which we are concerned here, has relieved the punishing authority of the necessity of issuing notices both in regard to the charge and for the penalty proposed".
(16) It has next been urged by the learned counsel for the petitioner that the petitioner should have been given an opportunity of being heard and a show cause should have been issued to him as the principles of natural justice required so as to be done before the termination of the services of the petitioner. The contention of the learned counsel is without any merit.
(17) It is a well settled principle of law that the principles of natural justice come into play only in those discerning few cases where there is no statutory bar for their application. In case there is a specific provision of law to cover a particular case and the case of an individual falls well within the domain of that statutory provision, in that eventuality the principles of natural justice do not come into play and that should not come to the rescue of the petitioner. They are not at par with the Fundamental Rights. The application of principles of natural justice have been done away with by Rule 9(1) of the Municipal Corporation Rules and Regulations and Article 311(2)(a) of the Constitution of India. Thus, the Court cannot supplant the principles of natural justice in order to obliterate and nullify the aforementioned provisions. '
(18) I am tempted here to cite the observations of their Lordships of the Supreme Court as reported in Union of India v. Col. J. N. Sinha, . .... ."(3) Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. Their aim is to secure justice or to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. They do not supplant the law but supplement it. If a statutory provision can be read consistently with the. principles of natural justice, the courts should do so. But, if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. . . . . . ".
(19) The learned counsel has then contended that the petitioner was given the benefit of the Probation of Offenders Act, 1958 ('the Act' for short). The petitioner after conviction was released under Section 4 of the Act. Section 12 of the said Act lays down that a person found guilty of an offence and dealt with under the provisions of sub-section (3) of Section 4 shall not suffer any disqualification attached to conviction of offences under such law. The learned counsel on the basis of the said provision of law contends that a mere conviction by a court of law cannot operate ipso facto as disqualification to hold an office in view of the provisions of Section 12 of the Act.
(20) There is no dispute with the said proposition of law as held by a Full Bench of the Punjab & Haryana High Court in Om Prakash's case (supra) that no penalty can be imposed on a government servant simply because of his conviction on a criminal charge because a conviction simpliciter does not operate as a bar in view of Section 12 of the Act after the said person has been given the benefit of Section 4 of the Act.
(21) However, the question which arises for decision is as to whether Section 12 would operate as a bar in the way of the authority to take action against the said person for the alleged mis-conduct which led to his conviction. My answer to the above question is an emphatic 'no' Section 12 of the Act does not wash off and obliterate the mis-conduct which led to his conviction. Thus. the authorities would be fully justified in taking an action against the said person oil the basis of his mis-conduct.
(22) To the same effect are the observations of their Lordships of the Supreme Court as reported in Shankar Dass v. Union of India and another. of the Probation of Offenders Act must be
placed out of way first. It provides that notwithstanding anything contained in any other law a person found guilty of an offence and dealt with under the provisions of S. 3 or 4 "shall not suffer disqualification" attaching to a conviction for an offence under such law. the order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of S. 12......... This is the sense in which the word "disqualification" is used in S. 12 of the Probation of Offenders Act. Therefore, it is not possible to accept the reasoning of the learned Single Judge of the Delhi High Court".
(23) Learned counsel for the petitioner has been argued that admittedly the petitioner after his conviction was released on probation of good conduct vide the impugned judgment and order dated July 30, 1975 by the Special Judge. He was reinstated. His suspension was revoked in the year 1971 during the pendency of the criminal proceedings. Thus he continued to work till he was dismissed vide the impugned order dated July 1, 1977.
(24) It is crystal clear from above that the petitioner was convicted on July 30, 1975, yet no action was taken against him on the basis of his conviction till July 1, 1977. Thus, he served for a period of two years even after his conviction. It was only then to the dismay and horror of the petitioner that he was dismissed from service. According to the learned counsel the dismissal from service is a punishment out of all proportion. The learned Special Judge while releasing the petitioner on probation took into consideration the circumstances of the petitioner obtaining at that time and taking into account those factors, took a lenient view and released the petitioner on probation of good conduct. According to the learned Special Judge the factors which weighed with him were the following : that the mis-appropriation was for a very short period. The petitioner had deposited the amount even before the registration of the case. He was not a regular qualified cashier, but he was made to work on that seat as the regular cashier was not available. He was not provided with any iron safe to keep the cash amount. He was the only bread earner of his family. He was also supporting the family of his brother as he was dead and there was none to support the said family. He has been facing the agony of the trial since the year 1964. .
(25) Besides the above, the learned counsel has pointed out that the petitioner was guilty of mis-appropriating the salary of one Radhwani. Junior Engineer, for the period from June 1964 to 30th November 1964. Thus he mis-appropriated a very paltry sum of Rs. 1763.50 only (vide the judgment dated July 30, 1975). The learned counsel further contends that the petitioner died during the pendency of the present writ petition on September 23, 1991.
(26) The authorities did not take into consideration all these facts before passing the dismissal order. No doubt, the dismissal order talks of the conduct of the petitioner which led to his conviction only the argument of the learned counsel is that a duty has been cast on the shoulders of .the authorities, to take into consideration all the factors relevant and material obtaining at that particular time and the conduct of the petitioner which led to his conviction. They should pass appropriate order only thereafter. What happened in the present case was that no speaking order was passed by the authorities while dismissing the petition. They did not take into consideration the factors which weighed with the criminal court while releasing the petitioner on- probation of good conduct. The disciplinary authority was oblivious of the fact that a convictio,n on a criminal charge would not ipso facto result into the dismissal, removal or reduction in rank of that concerned government servant. No doubt it is true that the authorities in case of a government servant who has been convicted on a criminal charge have been- bestowed with the powers to dismiss a person from service [vide Art. 311(2) of the Constitution of India. However, every power like any other power must be exercised fairly, justly and reasonably. The penalty must be commensurate with the conduct of the person which led to his conviction
(27) I find myself in perfect agreement with the learned counsel.
(28) The above view was also given vent to by their Lordships of the Supreme Court as reported in Shankar Dass (supra) . .. ." "It is to be lamented that despite these observations of the learned Magistrate the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in- so far as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Art. 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case. there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical".
(29) The above opinion was again reiterated in Union of India and another v. Tulsiram Patel, (1958) 3 Scc 388. "(5) Where a disciplinary authority comes to know that a government servant has been convicted on a criminalcharge. it must consider whether.his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be ... .. The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. . , . Where the Court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the Court also strike down the impugned order".
(30) To the same effect are also the observations of 'the Hon'ble Supreme Court as reported i.n Union of India v. Prema Nanda, 1989 (2) Slr 410(6).
(31) A Single Judge of the Himachal Pradesh High Court was of the view as reported in Hardyal Singh v. State of H. P., 1977(1) Slr 327 . . . ."(7) In' other words the punishing authority seems to have inflicted the punishment of removal of the petitioner from service merely because it was found that the petitioner was convicted by a court. of law. There is nothing in the order to suggest that the punishing authority had in any manner applied its mind to the facts "elating to the incident which led to the conviction of the petitioner. It had considered what part the petitioner had played in the commission of the offence".
(32) The upshot of the above discussion is that the disciplinary authority was under an obligation to apply its mind to the facts and circumstances before passing the impugned dismissal order. A close scrutiny of the impugned order reveals; that it was not so (4) which is in the following words :"...... And whereas it is considered that the conduct of said Shri N. P. Singh, L.D.C. which has led to his conviction is such as to render his further retention in Public Service undesirable. Now, therefore, in exercise of the powers conferred by Regulations 9 (i) of the Delhi Municipal Corporation Services (Control and Appeal) Regulations, the undersigned hereby dismisses the said Shri N. P. Seth from the service of the Municipal Corporation of Delhi with immediate effect". It is abundantly clear from above that the authorities concerned did not apply their mind the fact.; and circumstances of the present case and passed the dismissal order without taking into consideration the circumstances of the present case and that, too, two years after the conviction i.e. on July 1, 1977 after the petitioner was found guilty of the misconduct by the criminal court. It thus, does not appeal to the reason as to why the petitioner was allowed to continue in service for a period of two years, even after his conviction, if his conduct was such which rendered his further retention in service undesirable. I, thus, feel that the dismissal from service was a punishment out of all proportion. It is said in the words of Simms :
"TO make punishment efficacious; two things are necessary; they must never be disproportionate to the offence and they must be certain." In. view of the above, I am of the view that the impugned dismissal order dated July 1, 1977 is liable to be set aside. The petition is allowed. The dismissal order dated July 1, 1977 is hereby quashed and set aside. The petitioner who is dead now, will be deemed to have been reinstated in service with full back wages and all consequential benefits w.e.f. the date of his dismissal till the date of his death or superannuation, whichever is earlier. High Court Of Delhi, -NEW Delhi Copy of Notification No. 22803/Rules/DHC dated 14th December, 1995 published in .Delhi Gazette (Extraordinary), Part Iv, No. 219 dated 14th December, 1995. In exercise of the powers conferred by Section 122 and 129 of the Code of Civil Procedure, 1908 and Section 7 of the Delhi High Court Act, 1966 (Act 26 of 1966) and all other powers enabling it in this behalf, the High Court of Delhi hereby makes the following amendment in the Delhi High Court (Original Side) Rules, 1967 :- Rule 3 (38) of Chapter Ii of Delhi High Court (Original Side) Rules be substituted by the following rule :- "(38) applications for enlargement or abridgement of time. However, time shall not be enlarged beyond the date of hearing already fixed before the Court;" This amendment shall come into force immediately on the date of publication in Delhi Gazette. By Order of the Court, (M. A. KHAN) Registrar Endst. No. 6949-53/Rules/DHC Dated 15-4-1996. Copy forwarded for information/necessary action to :- (1) P.P.S. to Hon'ble the Chief Justice/P.A. to Registrar. (2) All Private Secretaries to Hon'ble Judges for their Lordships' information. (3) All Joint Registrars/Deputy Registrars/Assistant Registrars/ Court Masters/Superintendents of Delhi High Court. (4) Librarian, Delhi High Court. (20 copies) (5) Notice Board, Delhi High Court. sd/- legible Deputy Registrar (RULES) For Registrar Endst. No. 6954-58, Rules/DHC Dated 15-4-1996. Copy forwarded for information to :-- (1) The Secretary (Law & Judicial), Govt. of National Capital Territory of Delhi, 5, Sham Nath Marg, Delhi. (2) The District & Sessions Judge, Delhi. (3) President/Secretary Supreme Court Bar Association. Supreme Court. New Delhi. (4) President/Secretary, Delhi High Court Bar Association. Delhi High Court, New Delhi. (5)
President/Secretary, Bar Association Tis Hazari Courts/Patialala House Courts/Shahdara Courts/Karkardoom Courts, Delhi. sd/- Illegible Deputy Registrar (RULES) For Registrar Endst. No. 6959/Rules/DCH Dated 15-4-1996. Copy forwarded for information and necessary action to Sh. Madan B. Lokur, Editor, I.L.R., Room No. 461, 4th Floor, Lawyers Chamber, Delhi High Court, New Delhi. sd/- Illegible Deputy Registrar (RULES' For Registrar