HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 AFR Case :- SPECIAL APPEAL No. - 1905 of 2010 Appellant :- Mahendra Kumar Gaud Respondent :- State Of U.P. & Another Counsel for Appellant :- S.K. Rao,Awadh Narain Rai,O.P. Singh Counsel for Respondent :- C.S.C. Hon'ble Rajes Kumar,J.
Hon'ble Shamsher Bahadur Singh,J.
Heard Sri O.P. Singh, Senior Advocate, assisted by Sri S.K. Rao, learned counsel for the appellant and learned Standing Counsel for the respondents.
This is an appeal against the order of the learned Single Judge dated 20.7.2010 passed in Writ Petition No. 70001 of 2009 whereby the writ petition filed by the appellant has been dismissed.
The appellant was a Constable in Police Department. Admittedly, he had been convicted by the trial court for the murder committed by him and punishment of life imprisonment has been awarded. By order dated 7.9.2002, the appellant had been dismissed from service under Rule 8 (2)(a) of the U.P. Police Officers of the Sub-ordinate Ranks (Punishment & Appeal) Rules, 1991 (hereinafter referred to 'Rules, 1991').
Being aggrieved, the appellant filed writ petition, which has been dismissed. The learned Single Judge held that the issue involved is squarely covered by the judgment of this Court in the case of Brahma Dev Vs. Life Insurance Corporation of India, 2006 (3) ALJ, 710, which is based on the decision of the Apex Court in the case of Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, reported in AIR 1995 SC, 1364.
Learned counsel for the appellant submitted that against the order of the trial court convicting the appellant, an appeal has been filed wherein the sentence has been stayed and, therefore, the dismissal order is liable to be set aside and the appellant is entitled to be reinstated in service.
We do not find substance in the argument of learned counsel for the appellant.
Rule 8(2) of the Rules, 1991 reads as follows:
"Rule 8 Dismissal and removal:-
1-No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.
2-No Police Officer shall be dismissed, removed or reduced in rank except after inquiry and disciplinary proceeding as contemplated by these rules.
Provided that this rule 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 : or"
A bare perusal of proviso of Rule 8 makes it clear that the Police personnel can be dismissed or removed on the ground of conduct which has led to his conviction on criminal charges even without any disciplinary proceeding being contemplated. Therefore, exercise of power dismissing the appellant on the ground of conduct which has led to his conviction on criminal charges cannot be said to be illegal.
In the case of Brahma Dev Vs. Life Insurance Corporation of India (supra) not only the sentence but even the order of conviction was stayed in appeal and effect thereof was considered. It would be useful to reproduce paragraphs 11 to 16 of the said judgment as under:-
"11. Now coming to question no.1, in my view the power under regulation 39(4) can be exercised even if the order of conviction and sentence passed by the criminal court is stayed in appeal. A perusal of regulation 39 (4) shows that the factum of conviction on a criminal charge is sufficient to empower the Disciplinary Authority to consider the circumstances of the case and pass such orders as it may deem fit. Whether the order of conviction is operating or not or whether it is executable or not is of not much relevance for exercise of power under Regulation 39(4) of the Regulations of 1956.
12. A similar question came up for consideration before the Apex Court in the case of Deputy Director of Collegiate Eduction ( Administration), Madras Vs, S.Nagoor Meera, AIR 1995 Supreme Court, 1364. The Apex Court considered the pari materia provisions contained in Article 311(2), second proviso, clause (a) of the Constitution of India and said that what is relevant for exercise of power thereunder is the conduct which has led to conviction in criminal charge and not the conviction itself. There is no question of suspending the conduct of an employee when he has been convicted and in any appeal, the same is stayed. Since the Disciplinary Authority has to exercise power considering the conduct of the employee, which has led to his conviction on a criminal charge and since conduct is not stayed, therefore, even if the conviction has been stayed in appeal, the power can be exercised by the Disciplinary Authority on the basis of the conduct which has led to conviction on criminal charge.
13. The relevant observations of the Apex Court as contained in para 8 are reproduced as under:
" We need not, however, concern ourselves any more with the power of the appellate court under the Code of Criminal Procedure for the reason that what is relevant for clause (a) of the second proviso to Article 311(2) is the "conduct which has laid to his conviction on a criminal charge" and there can be no question of suspending the conduct. We are, therefore, of the opinion that 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."
14. It has also been held by the Apex Court in the same judgment that in cases where an employee is convicted on a criminal charge, the, appropriate course would be in all such cases to take action and not to wait for the result of the appeal or revision as the case may be. It is always open to the authorities to revise its order and reinstate the Government Servant with all the benefits if in appeal or other proceedings the Government Servant accused is acquitted.
15. Similar view has been taken by a Division Bench of this Court in the case of Mohal Lal Vs. State of U.P., 1998 (78) FLR 987: (1998 All LJ 987) and relying on Nagoor Meera Case: ( AIR 1995 SC 1364) ( supra) this Court in para 7 held as under:-
" 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 and 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. In view of this authoritative pronouncement, the order dismissing the appellant from service cannot be set aside on the ground that the operation of the judgment by which the appellant had been convicted under Section 304, Part -I IPC has been stayed in the Criminal Appeal preferred by him."
16. In the circumstances, it cannot be held that the respondents could not have taken recourse to regulation 39(4) of regulation of 1956 considering the conduct led to conviction of a criminal charge. The submission of the learned counsel for the petitioner, therefore, is rejected."
The Apex Court in the case of Deputy Inspector General of Police and another Vs. S. Samuthiram, (2013) 1 SCC 598 has held as follows :
"This Court in Southern Railway Oficers Assn. v. Union of India, reported in (2009) 9 SCC 24 held that acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The Court reiterated that the order of dismissal can be passed even if the delinquent officer had been acquitted of the criminal charge.
In State Bank of Hyderabad v. P. Kata Rao, reported in (2008) 15 SCC 657 (SCC p. 662, para 18) this Court held that there cannot be any doubt whatsoever that the jurisdiction of the superior courts in interfering with the finding of fact arrived at by the enquiry officer is limited and that the High Court would also ordinarily not interfere with the quantum of punishment and there cannot be any doubt or dispute that only because the delinquent employee who was also facing a criminal charge stands acquitted, the same, by itself, would not debar the disciplinary authority in initiating a fresh departmental proceeding and/or where the departmental proceedings had already been initiated, to continue therewith. In that judgment, this Court further held as follows: (SCC p. 662, para 20) "20. The legal principle enunciated to the effect that on the same set of facts the delinquent shall not be proceeded in a departmental proceedings and in a criminal case simultaneously, has, however, been deviated from. The dicta of this Court in Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. however remains unshaken although the applicability thereof had been found to be dependent on the fact situation obtaining in each case."
In Karnataka SRTC v. M.G. Vittal Rao, reported in (2012) 1 SCC 442, the Apex Court after a detailed survey of various judgments rendered by this Court on the issue with regard to the effect of criminal proceedings on the departmental enquiry, held that the disciplinary authority imposing the punishment of dismissal from service cannot be held to be disproportionate or non-commensurate to the delinquency."
The Apex Court further held as follows:
"As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
In the case of Baldev Singh Vs. Union of India and others, reported in 2006 SCC (L&S) , the Apex Court has held as follows :
"As the factual position noted clearly indicates, the appellant was not in actual for the period he was in custody. Merely because there has been an acquittal does not automatically entitle him to get salary for the period concerned. This is more so, on the logic of no work no pay. It is to be noted that the appellant was terminated from service because of the conviction. Effect of the same does not get diluted because of subsequent acquittal for the purpose of counting service. The aforesaid position was clearly stated in Ranchhodji Chaturji Thakore v. Supdt. Engineer, Gujarat Electricity Board, reported in (1996) 11 SCC 603."
In view of the above, we do not find any error in the impugned order, which requires interference by this Court.
The Special Appeal fails and is dismissed.
Order Date :- 21.7.2015 OP