Ratan Singh vs State Of U.P.Thru Principal ...
2013 Latest Caselaw 7009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 11685 of 2013
 

 
Petitioner :- Ratan Singh
 
Respondent :- State Of U.P.Thru Principal Secretary & Ors.
 
Counsel for Petitioner :- S.M.Haider Zaidi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri S.M.H. Zaidi, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. It is contended that the impugned order dated 28.04.2011 passed by Senior Superintendent of Police, Aligarh, confirmed in appeal and revision vide orders dated 28.01.2012 and 11.09.2012, has been passed without holding any inquiry and merely relying on conviction of petitioner in Session Trial No. 808 of 2007, though in appeal preferred by petitioner before this Court, being Criminal Appeal No. 2064 of 2011, the conviction has been stayed, therefore, no punishment ought to have been imposed upon petitioner till appeal is pending before this Court.

3. This issue is squarely covered by the judgment of this Court in Brahma Dev Vs., Life Insurance Corporation of India, 2006(3) ALJ, 710 and 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, therefor, 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 benefit 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."

(emphasis added)

4. It is next contended that the impugned order is founded on mere conviction and the conduct led to conviction so as to justify maximum punishment of dismissal has not been considered by competent authority. In a mechanical manner on the basis of mere conviction it has imposed maximum penalty of dismissal upon petitioner.

5. The question as to whether the order must disclose application of mind on the part of the disciplinary authority that it has considered the question of conduct led to conviction of the Government servant before passing punishment order is no more res integra.

6. In the case of Union of India Vs. Tulsi Ram Patel, AIR 1985 SC 1416, the Apex Court while considering the pare materia provision under Article 311 of the Constitution of India, held as under:-

"The second proviso will apply only where the conduct of a government servant is such as he deserves the punishment of dismissal, removal or reduction in rank. If the conduct is such as to deserve a punishment different from those mentioned above, the second proviso cannot come into play at all because Article 311(2) is itself confined only to these three penalties. Therefore, before denying a government servant his constitutional right to an inquiry, the first consideration would be whether the conduct of the concerned, government servant is such as justified the penalty of dismissal, removal or reduction in rank. Once that conclusion is reached and the condition specified in the relevant clause of the second proviso is satisfied, that proviso becomes applicable and the government servant is not entitled to an enquiry." (Emphasis added)

7. A similar question came up for consideration before a Division Bench of this Court in the case of Shyam Narain Shukla Vs. state of U.P. (1988) 6 LCD 530 and this Court held as under:-

"In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who, as laid down by the Supreme Court, is not to be given an opportunity of hearing at that stage. (Emphasis added)

8. Similarly another Division Bench of this Court in Sadanand Mishra Vs. State of U.P., 1993 LCD page 70 held that on the conviction of an employee of a criminal charge, the order of punishment cannot be passed unless the conduct which has led to his conviction is also considered. Further, it is held that the scrutiny of conduct of an employee leading to his conviction is to be done ex parte and an opportunity of hearing is not to be provided for this purpose to the employee concerned.

9. In view of the finding in favour of petitioner on second issue, as above, that, the impugned order of dismissal has not been passed by competent authority after considering "conduct led to conviction" but only in a mechanical way on the basis of mere conviction, the writ petition deserves to be allowed.

10. The writ petition is accordingly allowed. Impugned orders dated 28.04.2011, 28.01.2012 and 11.09.2012 are hereby set aside. The petitioner shall be entitled to all consequential benefits. However, this order shall not preclude the respondents from passing a fresh order in accordance with law.

Order Date :- 19.11.2013

AK